Tamil mother waiting for her son to come back ( Image courtesy of Vikalpa)
Parliament of Sri Lanka this week, passed into law the ‘Office for Reparations Bill’ (the Bill), the second mechanism promised within the transitional justice agenda. Though the noise on the Bill was somewhat muted unlike the lead up to the enactment of the Office on Missing Persons (OMP) Act, polarised positions were still evident in the statements made by several in Parliament. This should come as no surprise considering the divisive statements made earlier by some in Cabinet when proposals were presented to provide compensation to former cadres. This deep polarisation, narrow notions of victimhood and the politicisation of processes that are meant to promote reconciliation are all deeply troubling in a country that has witnessed decades of cyclical violence affecting all communities.
No proper consultations held
The Office was promised in 2015 when it was included in the United Nations Human Rights Council Resolution 30/1 which was co-sponsored by the Government of Sri Lanka. In 2017, the Government requested for more time to implement the commitments contained in the Resolution and received a further two year extension. In June this year there was a rush to introduce the Bill with just one consultation session organised in Colombo for select civil society members. The civil society made calls for broader consultations and shared proposals for potential amendments, but these were ignored and the Bill hastily gazetted and tabled in Parliament. In the enthusiasm to rush the Bill, limited attempts were made by the authorities to genuinely engage with victims and affected communities and to raise awareness among the public as to what reparations are, and how a future Office could function. This was confirmed recently when I spent a few days in the North of Sri Lanka where the lack of awareness on the new law was evident.
Lack of awareness among law makers
This lack of awareness was apparent during the Parliament debate where, barring a few, many MPs were not fully aware of what reparations are and how they can be beneficial for their own constituencies. In the absence of information and constructive debate, divisive positions have been emboldened. Some of the statements made by politicians also highlighted the lack of understanding of a Bill that was in the public domain for a few months, now. Either due to this lack of understanding or in an attempt to create mischief, false assertions were made during the debate which could exacerbate tensions and create mistrust among affected communities. It also highlighted the critical need to understand what reparations are and their potential impact in postwar Sri Lanka.
A pillar of Transitional Justice
Reparations are one of the four pillars of transitional justice, the others being, truth, justice, and non-recurrence. Reparations complement the other pillars and should not be treated as a separate entity. Leader of the Opposition R. Sampanthan in his speech during the debate recently, reiterated the need for truth and justice, and underscored why reparations are not a substitute to these. This is an essential point. The new law provides for individual and collective reparations and can also assist victims by way of providing material and symbolic support to assist with rebuilding their lives. If implemented in a comprehensive manner, reparation can directly and comprehensively benefit victims and affected communities across Sri Lanka.
Available to all victims
Reparations are a critical component for societies that have experienced past abuses. Reparations are a way of recognising the grievances of individuals and communities and providing them with appropriate remedies. They can also allow victims to be recognised and be treated as rights holders. Reparations as provided in the new law will be available to all victims of past abuses and are not meant for a select few.
Reparations are not new to Sri Lanka. Successive governments have provided various aspects of reparations with institutions such as, the Rehabilitation of Persons, Properties and Industries Authority (REPPIA) and others being tasked with administering these forms of reparation. REPPIA has had its own challenges, from a narrow scope to limited funds. We have also witnessed the lack of uniformity in how reparations are dealt, with multiple actors being involved with compensation schemes in relation to different disasters and conflicts in the past. This has inadvertently resulted in victim hierarchies where some victims receive greater compensation than others. The Office can address these anomalies by bringing the different reparation schemes and programmes within one entity and ensuring there is coherence and consistency in the future.
Worrying sections remain
The Office is meant to be an independent entity to define and implement reparations for all Sri Lankans. This means anyone across Sri Lanka can go before the Office. But, several worrying sections remain in the recently enacted law. One is the dependency on the Cabinet for the approval of policies and guidelines formulated by the Office (section 11(1)(g)). Recent debates demonstrated particular views held by some in Cabinet which can possibly colour any future approval process and ultimately impact the work of the Office.
Second is the role of Parliament. Section 22(4) provides that any policies and guidelines authorising the disbursement of funds require Parliament’s approval. This adds an additional layer of approval to what is meant to be an independent entity, potentially leading to delays and resulting in policies and guidelines being changed to address concerns raised by politicians.
Reparations are more mere compensation
The Office will have its own fund with identified funding sources which will be audited by the Auditor General. A lesson to learn from existing reparations schemes is to ensure that the Office has sufficient funds to provide reparations. Limited funds will negatively define reparations programmes, shutting out some victims and leading to the creation of victim hierarchies and divisions within victims and communities. Reparations, however, are more than mere compensation and every effort must be taken to design and implement comprehensive reparation policies, guidelines and programmes which address all dimensions of the suffering endured by victims.
Communications is critical
It is hoped, the process of appointment provided in the law will ensure that the five members to be appointed to the Office will be those with expertise and knowledge and be independent. The OMP took an unduly long time to be operationalised and one hopes the Office does not face the same fate. Equally important is the recruitment of staff with necessary expertise and skills, and ensuring regional representation so that people across Sri Lanka are able to access the Office. Further, communication is a critical area that requires considerable strengthening in order to educate the public as to what reparations are, the mandate of the Office and other relevant information. A concerted effort must be made on raising awareness and engaging with victims, affected communities and the larger public.
Time is of the essence. This month, the President promised to return state-occupied lands to their owners by the end of the year. The OMP has produced an interim report which contains several important recommendations requiring attention. Numerous victims of violence and conflict are still awaiting financial and social assistance. Challenges in memorialisation remain for many who lived through the war. All these and more come within the purview of reparations. We now have the law to provide for an Office. The coming weeks and months will tell if the Office is able to deliver and whether it goes beyond mere rhetoric to one that truly facilitates in genuine transformation.