DBSJeyaraj.com on Facebook

Responding to Geneva by Exemplary Restitution

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this page

By

Austin Fernando

Robert O. Blake has once said, “International mechanisms can become appropriate in cases where states are either unable or unwilling to meet their obligations.” After Geneva March 2013, US officials have reiterated this in stricter terms.

TNA MP Suresh Premachandran has said the final Geneva Resolution will not relieve the affected Tamils and reminded the UNHRC wish (2012) to implement the LLRC recommendations, which allegedly has been defaulted. TNA Leader R Sampanthan has said that if Government of Sri Lanka (GOSL) complied by implementing the LLRC recommendations, a second resolution could have been avoided.

However, Japan’s Yasushi Akashi has made a favourable statement for Sri Lanka, quoting his visits to North Sri Lanka and how “the whole country coped with the challenges”

In Geneva Minister Mahinda Samarasinghe described positive developments. Later, Minister Wimal Weerawansa exhorted that Sri Lanka is unshaken by Geneva resolutions, while Minister DEW Gunasekara feared worse befalling by government defaulting.

Is this confusion due to different viewer notions?

Here, I address the non-implementation of one LLRC recommendation, (i.e. restitution), which incorporates almost all international concerns, e.g. rights, resettlement, reconciliation etc. This is especially important in the North, where the largest noise is echoed. It refers to the return of the displaced to their original homes- restitution– meaning occupation of lands, shelter, rehabilitation, livelihood facilitations, compensations etc. Before the LLRC, I mentioned appropriate mechanisms for restitution. I believed that if the GOSL acts accordingly, criticisms could be minimized. With criticism directed at GOSL, it appears that GOSL has defaulted in the eyes of internationals, while government spokespersons mean otherwise.

Some criticize the actions to implement the LLRC recommendations, as tightening screws on restitution. For example, I quote Vimarsanam (8-3-2013) to explain one concern- i.e. land- which said:

Land Circular 2013/01 provides detailed procedures that will enable the large scale assessment of the range of land problems that returning IDPs face as well as provide procedures for tackling land ownership and occupation problems faced by people.

At the same time, however, the Circular seems to foreclose the possibility of displaced recovering lands that have been taken over by the State for either military or security purposes. The Circular says in Paragraph 2.2.1.1 : “…there is no barrier to alienate lands for Government-approved development projects…”. The Circular also declares in Paragraph 2.2.1.2 that IDPs may also have ‘lost’ lands due to use by the armed forces and for development activities. The Circular provides for possible alternative land issues for those who have ‘lost’ lands in this manner, but does not seem to provide for any possibility of recovering such State-appropriated lands.

This programme will be made effective according to Cabinet Paper number 11/0737/533/015 of 2011.03.07. in implementing the relevant LLRC Recommendations.”

However, in fairness to the Lands Ministry, it has improved on the previous controversial circular due to agreement reached in Courts. The Ministry gives an opportunity for fair representation, inquiry, compensation etc which is appreciable for restitution.

Concurrently, while doing well, GOSL has tried to twist some LLRC recommendations. For example, the GOSL’s LLRC National Action Plan (NAP) has recommended a Fourth Land Commission. Why the Fourth? Because, there were three earlier. Such Land Commissions and National Land Commission (NLC) in the 13th Amendment are two. The Land Commissions have been appointed previously at an interval of roughly thirty years- 1927, 1956 and 1985. Why mix Land Commissions with NLC, for which there was a draft Bill 20 years back, but lapsed with the dissolution of the Parliament?

While the 1927 and 1956 Land Commissions were appointed under colonial rule fiat by the ‘Officer Administering the Island of Ceylon’ and Governor General respectively, 1985 Commission was appointed under presidential fiat. They had the power to make recommendations and not to formulate national land use policy. Land Commissions were a one-off arrangement. In comparison the NLC is to formulate a technically backed National Land Policy- a permanent appurtenant of State. Since there is no law for the NLC presently, NAP would have surely anticipated appointing the Fourth Land Commission upon presidential fiat- a Presidential Commission.

Land Commission Commissioners were professionals and sometimes politicians, and the mix of politicians was overwhelmed by professional appointees. The Commissions were assisted by officials and since they were one-off arrangements there was no need for a continuing Technical Secretariat. However, the 13th Amendment’s NLC is to have a permanent Technical Secretariat and continuity would have been based on technical advances that happen in the field of State land administration and other sciences, conveyed by the Secretariat.

The NLC that is to be appointed constitutionally will have professionals, Provincial Council representatives, and be apolitical or non-ethnic biased in policy making, which one can least expect from a Presidential Commission presently, where every thing is politicized and ‘ethinicized’. Am I to gauge this NAP proposal a slip or deliberate manipulation to hoodwink the constitutional base?

In a previous article I incorporated some restitution issues. When restitution was reportedly static, I wrote to a topmost bureaucrat in April 2011 (pre-LLRC Report) of the need to address these issues. I quote:
“I may quote for example; that the much criticized Robert Blake has appreciated many GOSL initiatives at the Asia Society Event held on March 14th 2011 and testifying before the House Foreign Affairs Committee, Subcommittee on the Maldives, East and South Asia on April 5th 2011. His concerns had been on human rights, democracy and governance issues, and the concrete steps necessary for a true and lasting national reconciliation. USA’s concerns are on ‘promoting reconciliation, enhancing local governance, building civil society capacity, increasing economic opportunities to those affected by conflict, and assisting the continued resettlement and reintegration of displaced persons.’ These are issues that will be inheritances of any conflict of Sri Lanka’s sort. These are issues that take time, resources, institution building, legal reforms etc and could be incorporated in the LLRC recommendations for implementation and included in normal state programmes. ………. GOSL can implement these on staggered basis and the expected venom against the GOSL could be diluted. In such background efficient governance and leadership could be permitted to handle a wide range action plan.”

If sharing happened as decided by him on my representation and my propositions executed, larger accolades would have showered on the GOSL on restitution.

Giving evidence before the LLRC I emphasized on the Pinheiro Principles for housing and property restitution. As I still believe that these principles can help us, even after Geneva 2013 March, I reiterate some relevant Principles due to field realities addressed by internationals.

Realities of restitution / resettlement

One internationally acclaimed reality of effective and reasonable restitution/ resettlement is the genuine recognition that the displaced and refugees possess the right to voluntary return, in safety and dignity, to their original or former habitats. Further, governments must recognize that the rights of refugees and displaced should be respected and undertake positive measures to ensure their rights to housing, land and property restitution are guaranteed. These responses satisfy a key element of restorative justice, contributing to effectively deter future displacement, building sustainable peace and even compensating losses on alleged rights violations. Are not these Sri Lanka aspires?

Reasons for delaying restitution / resettlement

Another reality of displacement is the existence of High Security Zones (HSZs), terrorist regrouping potential etc. Nevertheless, the wiping out the LTTE causes the affected to highlight lessened security threats demanding lawful restitution. Contrarily, in our case with Diaspora crying for Transnational Governments, demanding ‘separation,’ this reality is diluted.

However, HSZs require a practical and reasonable solution. The displaced who demand restitution of their properties and resettlement are: (1) people who lived adjacent to the core HSZs (e.g. around Palaly Air Port); (2) people whose properties were acquired (e.g. near Palaly / Batticaloa Air Fields); (3) vacant houses occupied forcibly without permission (e.g. Chavakachcheri); (4) other properties used by the security forces and the LTTE.

The (1) and (2) categories cannot be quickly returned or may be ‘non-returnable.’ HSZs expanded as response to increasing LTTE fire-power. Now it may not be a threat. GOSL can reassess the potential threats and contract HSZs, as reportedly done already. But, some affected demand complete removal of tri-forces. It cannot and will not happen. For categories (3) and (4) it is best that releasing be examined not only by the Military, but by a tribunal making recommendations for prompt realistic compensation, when lands are un-returnable. Some will have to be retained by the military, as the State’s need takes precedence. This should be understood by the affected too. In such event adequate compensation should be made forthwith to the owners.

Some practical and legal difficulties affect restitution and resettlement. Firstly, finding documentary evidence of ownership is difficult. In case of the displaced Sinhalese in Jaffna, it may be the Lease / Rental Agreements. Forcibly displaced Muslims may face similar difficulties. Secondly, the Military and LTTE have disturbed land boundaries and landmarks, requiring re-surveying. The circular 2013/01 has addressed these to some extent. Thirdly, demining should be completed. Fourthly, the issue of Death Certificates to the disappeared is required to execute compensation. These require changes to laws, procedures etc; because resettlement agencies (e.g. Local Authorities, Banks etc) demand these. Some of these have been partly addressed after war victory.

Pinheiro Principles

There are internationally accepted principles for restitution, e.g. Pinheiro Principles. The Right to Housing and Property Restitution is embedded in it, which says: “All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.”

The latest Circular 2013/01 has said “An opportunity should be given to the people who are residing in the Northern and Eastern provinces, people who have abandoned the area who have resettled after being displaced and for those people who are expecting to settle again and who have problems related to state lands, to present their problems,” which partially confirms the quoted restitution principle. The right to restitution exists as distinct in both, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.

However, Circular 2013/01 introduces a “lost lands” concept. It says:

Situations where people have lost lands after the conflict, due to being vacated or chased away from their lands during the conflict period have been identified. Lands belong to such people are lost due to reasons like, using for development activities under government institutions and armed forces or because other people have permanently settled on those lands. At instances, where those lands cannot be practically claimed again, action should be taken to identify suitable lands from those areas itself and to provide alternative lands upon their consent. If alternative lands are given for private lands or for lands distributed under state grants, these alternative lands should be given according to the compensation assessment carried during the acquisition process of those lands.

The highlighted sentences explain how land gets ‘lost’ without a claiming possibility. If land is lost, alternative land by consent should be received in lieu, on an assessed compensation. The problem raised now by the Tamil politicians and affected is that their lands have been taken away and permanently occupied by newcomer intruders and military camps are established. Politicians complain of disturbing demography ratios. Votes are their lifeline! The original owners of these lands will argue that their “right to have restored them any housing, land and /or property of which they were arbitrarily or unlawfully deprived” is lost by this arrangement, while Circular 2013/03 could be interpreted as converting such ‘arbitrariness’ or ‘unlawfulness’ to ‘predictable’ and ‘Lawful’ status. Will the affected rely on the judgment of a tribunal of the Divisional Secretary and officials, as independent and impartial? Of course, if every one is suspected restitution cannot move forward

Even if GOSL has accepted Pinheiro Principles, conflict sensitivity has left room for the affected and internationals to question the government’s commitment. GOSL has taken shelter under the potential of terrorist regrouping threats. However, to totally absolve any potential threat cannot be accepted immediately, as reflected in Ministry of Defense (MOD) statements. This demands reconciliatory confidence building between the citizens and GOSL.

Overarching Principles of Restitution

Here I have avoided discussing some Pinheiro Principles- i.e. Right to Privacy and Respect for the Home, Right to Peaceful Enjoyment of Possessions- due to their secondary importance. Other principles discussed are.

(a) The recognition of the Right to Non-Discrimination Principle on race, ethnicity, language etc and equality before the law is important in restitution. GOSL’s critics highlight such discrimination by Sri Lanka. For instance, Vimarsanam (11-3-2013) said of Sampur in Trincomalee endorsing such criticisms of “lost lands”, which they claimed did not lose even during the war! The reason for loss was adduced to allocation of land for a coal power station and an industrial park. They seem to discount economic benefits of development and highlight (a) displaced being a minority (b) facing worse status than the war days, and, (c) purpose of acquisition being for the military and development, but not for the displaced. Tamilnet (25-3-2013) complained that GOSL is actively engaged in settling Sinhalese families from the South when Tamil displaced languish in huts and of State-aided colonization in Mavilaru and along Alle-Kantale road; and, the Navy curtailing fishing by Muslim fishermen in Pulmoddai. If true, (because of likely exaggeration) these complaints are anti-restitution.

(b) The Right to Equality between Men and Women- State has to ensure equal rights of men and women for housing, land and property restitution, i.e. for return, inheritance, tenure rights and control of and access to housing, land and property, recognition of joint ownership rights of both the male and female heads of the household.

(c) The Right to be Protected from Displacement- Everyone has the right to be protected against arbitrary displacement from land or habitual residence. Tamilnet has reported questionable situations, most likely exaggerated. Nevertheless, GOSL should legislate protections against displacement, consistent with international human rights and humanitarian law and related standards. They should extend these protections to everyone. Irrespective of improved safety status, Tamilnet has complained of forced eviction, demolition of houses, destruction of agricultural areas and the arbitrary confiscation or expropriation of land. The GOSL’s response had been based on exaggerations, potential LTTE’s regrouping threats, which are not virtually written off.

Forced eviction and occupation of lands have brought disrepute to the GOSL. I quote from Prohibition of Forced Evictions Commission on Human Rights- Resolution: 2004/28, which affirmed that forced eviction is contrary to human rights laws; urged Governments to undertake immediate measures to eliminate forced eviction and protect all threatened with forced eviction basing upon effective participation, consultation and negotiation with the affected; recommended that all Governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land to the forcibly evicted; following mutually satisfactory negotiations, reminded all international financial, trade, development and related agencies to take cognizance of this Resolution; and, requested the UN High Commissioner for Human Rights to persuade Governments to comply with relevant international standards, to prevent planned forced evictions taking place and ensure the provision of restitution or just / fair compensation.
Circular 2013/01 has addressed some of the above issues which could be further improved. I am certain these propositions, if operationalized could take a large amount of venom against GOSL, where “eviction” per se has happened. However, with lacking confidence could such work? Hence, stakeholders should explore methods of acceptable restitution to suit vivid eventualities. I believe that circular 2013/01 has partially addressed this requirement making all administrative tiers and field level officials responsible for settling land issues.

(d) The Right to Freedom of Movement- This is a great political boast made to the internationals, among consistent allegations against the military and administrators in certain areas. However, here too the MOD argument had been unsurprisingly national security biased. The movement relaxations in qualified areas have to be provided, at least in stages. Defence authorities have commenced action but the affected are more anxious. They argue that if the end of war means replacement of LTTE combatants by soldiers, it will be a static or weakened human security environment with LTTE boot marks replaced with the Army’s.

However, the recent statement by security authorities, southern political authorities and even some foreign authorities indicate that the status has changed, favoring Sri Lanka. In infrastructure development this change is very obvious. It appears that the international demand is for the principles governing the right to choose the residence, non-execution of arbitrary or unlawful forcing to remain in or keep away from specified areas, controlling livelihoods through restrictions (e.g. cultivation, fishing), basing on security precedence. One cannot say that these are inapplicable restrictions but should be non-discriminatory.

. The complainants highlight consistency to international human rights, refugee and humanitarian law and related standards. However, they did not mind such being not practiced by the LTTE for much longer! They would not have had any choice either. Compared to criticisms against GOSL what is not adequately highlighted in defense of the GOSL is the authority the State has to subject citizens to restrictions that are necessary to protect national security, public order, public health or morals or the rights and freedoms of others. This is of course indirectly admitted in Circular 2013/ 01, which says that “there is no barrier to alienate lands for government approved development projects.” Whether this status is favorable for reconciliation and restitution is questionable, but having being a former Secretary of Defense I must say even during the relatively peace period (2002-2003), I had similar apprehensions on certain areas like Trincomalee Harbor and the northern HSZ.

Right to Voluntary Return in Safety and Dignity

The right to voluntarily return to the original habitats in safety and dignity is clear. The Pinheiro Principles give the unabridged right under conditions of state succession. It cannot be subjected to arbitrary or unlawful time limitations, though we occasionally hear such dictates. Refugees and displaced persons shall not be forced or coerced to return to their former habitats. They should effectively pursue durable solutions to displacement, other than return, if they so wish, without prejudicing their right to restitution of their housing, land and property. Unfortunately, all these are complaints from the North, especially with anti-GOSL political and pro-Tamil ethnic twist, (Muslims / Sinhalese forgotten!).

The safety factor in addition to return will depend on issues like freedom of movement, non recurrence of displacement and protection, non-discrimination etc. According to certain anti-government media these rights are violated by not permitting return and pressure brought to leave camps to suit the GOSL calendars and agendas. Rather than pressurizing in this manner, dialogue may be a better option.

Dignity is not achieved by return alone. It should go hand in glove with freedom, economic rehabilitation, livelihood development, civil society activation etc which should be promoted. In fact, the Secretary Defence has publicly emulated these recently. However, the complaint is that instead of these rhetorics, ‘militarization’ has overtaken ‘democratization’. These require larger promotion of confidence building, as longstanding war scars cannot be erased overnight. The contribution of politicians at both ends, bureaucracy, clergy, genuine civilian interventions and media support will be essential for this.

Legal, Policy, Procedural and Institutional Implementation Mechanisms

This is a focus area that covers most of the operational issues that needs vast reinforcement.

(a) National Procedures, Institutions and Mechanisms- State should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims (including that of tenants and collective claimants). Everyone arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, free of gender sensitively, ensuring separated and unaccompanied children’s “best interests” and quickly disposing determinations on claims.

Can Circular 2013/01 achieve this? Do the affected consider the existing procedures, institutions and mechanisms possess these qualities? Rightly or wrongly, from LLRC evidences by Tamil civilians and politicians, it did not appear so. Like the Tamils even the affected Muslims await positive performance. Tamilnet reports have shown the opposite happening (e.g. distribution of tractors by the ICRC in Vanni sometime back, resettlement of Sinhalese displaced in Navathkuli). GOSL should take appropriate administrative, legislative and judicial measures, guidelines to facilitate the housing, land and property restitution process and confirm apolitical and impartial responses. Any program should comprise of adequate consultation and participation with the affected communities. Are they on line?

(b) Rights of Tenants, Secondary Occupants and other Non-Owners- Within restitution programs State should recognize the rights of tenants and other legitimate occupants or users of housing, land and property. To the maximum, State should ensure that such persons return to and re-possess, use their housing, land and property similar to those possessing formal owner-rights. For instance, Sinhalese displaced were mostly tenants or lease-holders in Jaffna and it need not be considered a disqualification for restitution / resettlement under this Principle and they should return, if so wish. The difficulty is that international guidelines demand ensuring the safeguards of due process extended to secondary occupants without prejudice to the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question. GOSL should address this issue.

(c) Legislative Measures- International requirements are for recognition of an essential component of the rule of law and legislation to ensure the right to housing, land and property restitution, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. These should be studied by GOSL. There are several state organizations that could assist restitution, e.g. National Housing Development Authority, State Mortgage Investment Bank etc. More organizations (e.g. Cooperative Rural Banks, Sanasa Banks) could be authorized legally for the specific purpose of restitution and resettlement. They should be directed to cooperate appropriately, to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution. State should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property. In order to minimize destruction and looting, GOSL should develop procedures to inventorize the contents of claimed housing, land and property within its restitution/ resettlement programs and may even introduce State sponsored insurance schemes as a safeguard.

(d) Compensation- All refugees and displaced have the right to full and effective compensation (i.e. monetary / kind) as an integral component of the restitution process. State shall, to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when restitution is not factually possible (e.g. when housing, land and/or property is destroyed or not in existence, as determined by an independent impartial tribunal) or when the affected party knowingly and voluntarily accepts compensation in lieu of restitution, or, when the terms of settlement provide for a combination of restitution and compensation. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy for restorative justice. Anyway some affected may expect total replacement of assets after decades of devastation, which will be impossible and this should be considered favourably by foreign donors too, who should maintain non-discriminatory compensation packages. Similarly, if what Vimarsanam (11-3-2013) says is true of Sampur where the Divisional Secretary has offered Rs. 2 ½ lakhs as compensation too cannot be an acceptable move, when there has not been a proper tribunal inquiring on compensation.

Role of the International Community, Including international Organizations

The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity and should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions. They should share expertise on the development of national housing, appropriate shelter land and property restitution policies and programs and help ensure their compatibility with international tools for rights protection. They should cooperate and coordinate with GOSL authorities and maintain a balanced approach of support, and give their resources and experiences to the GOSL to create an effective and efficient voluntary return of the affected.

Conclusion

What we observe in restitution / resettlement is the demand made from the GOSL for performance under threatening pressures for time, resources, amalgamated demands for instance such as security and threat perceptions of the military etc. While the GOSL authorities may not be perfect, admittedly spokespersons for the affected too are not. It is proved from the haste and uncompromising demands for restitution, resettlement and compensation. Striking a balance between the government authorities and the affected is the main issue. To suit internationally acclaimed standards exactly as described here is difficult. Nevertheless, adhering to them will be an easy way to avoid accumulated fault finding and to prove GOSL’s unbiased, ethical behaviour.

Here I have tried to selectively discuss important aspects of restitution in the Pinheiro Principles. Deeper study by the GOSL and representatives of the affected will be useful to strike this balance. I wish it happens and a professional job, satisfying the GOSL, affected, civil society and internationals could be found. Empty rhetoric of willful forced eviction that could bring criticism from the affected and the internationals coining human rights violations by such action should be avoided, as the country has to move towards reconciliation, and not hatred.

This cannot be achieved by such understanding by the GOSL alone. The affected and spokespersons should understand the difficulties the GOSL faces, and hence tolerance and compromise are the most appreciated qualities to strike this golden balance. LLRC was a good tool to recommend such consensual approach and it is up to the GOSL to address restitution / resettlement in a legal, professional and reasonable manner. Doing so is a positive response to the pressures on GOSL experienced in Geneva recently.

Proper successful implementation of restitution should not be done to satisfy international pressure points. It is an obligation of the government to do as reconciliation is the most needed at present.
(The Writer is a former Defence Secretry)

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this page