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.
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INTRODUCTION
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 2011 and 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.1 Since the LLRC report was made public seven months ago, the Government has made a series of pledges to implement the LLRC. 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.2
Hence, the ment of the Action Plan by the cabinet in July 20123 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”4 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.5 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.6
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.7
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 (8 months period) and tabled in Parliament (7 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.8
b) On detention a variety of recommendations are excluded, including specific suggestions on procedures to be taken during detention.9
c) The focus in the Action Plan is on disarming individuals rather than on armed groups.10
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 child tracing (9.81) of children who are missing. The action mooted in the Action Plan is rehabilitation and reintegration of child combatants.11
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,12 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 theTask 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 someLLRC 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.13• 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 regards to two activities.14
However, given the overlap of issues in the Action Plan and the NHRAP15 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 Ministry of Defence is listed as the agency in charge of or overseeing the implementation of these activities. The issues to be investigated include:
a. Incidents of attacks on civilians detailed in the LLRC. (9.9 and 9.37a)b. Disappearances of persons after they surrendered/ were arrested. (9.23)c. 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.16 The role of the Ministry of Defence 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 Ministry of Defence 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 East as the entity responsible for implementing activities with time frames extending up to 18 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,17 given the politicization of state institutions (including the police and judiciary) and the implications of the Eighteenth 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 regards 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 uncooperative. 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.18 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.19
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.20 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.21
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.22 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.23 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.24
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.25
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.26
NEXT STEPS
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.27 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.
– Centre for Policy Alternatives August 2012
End notes
1 An Inter-Ministerial Committee was established to implement the interim report of the Lessons Learnt and Reconciliation Commission (LLRC) in September 2010 but there is a lack of clarity as to progress made with the implementation of these initial recommendations. Both the Final Report and the Action Plan reiterate the call for implementation of some of these interim recommendations.
2 Cabinet Spokesman and Media Minister Keheliya Rambukwella stated that the government could “implement the recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC) only according to a road map as spelled out earlier and the government could not implement the report in its entirety without having a dialogue with all the stakeholders.” (Kelum Bandara, “Can implement LLRC recommendations only according to road map: Keheliya”, Daily Mirror, 6 January 2012) ; Minister Nimal Siripala de Silva the Leader of House in the Sri Lankan Parliament and a member of the Government delegation to the 19th Session of the UN HRC stated that “The LLRC has gone beyond the mandate given to it by President Mahinda Rajapaksa at certain points. The government has to consider what parts of the recommendations can be implemented immediately and what parts of the recommendations need further attention, in depth study etc and how they make an impact on the country’s future.” (N.G, “‘Constitution allows state to hold referendum only for single reason’, Daily News, 27 March 2012); Acting Media Minister and Cabinet spokesperson Minister Lakshman Yapa Abeywardana stated that the “Government is committed to implement Lessons Learnt and Reconciliation Commission (LLRC) recommendations deemed acceptable to Sri Lanka but will not give in to undue pressure.“ (BBC Sinhala.com “Parliament to decide LLRC implementation”, 5 April 2012, last accessed on 21 August 2012, (Available at http://www.bbc.co.uk/sinhala/news/story/2012/04/120405_yapa.shtml); Senior Minister Prof Tissa Vitarana stated that “President Mahinda Rajapaksa is very clear that the recommendations of the LLRC appointed by him should be implemented all recommendations cannot be implemented overnight and the government has already implemented a number of recommendations.” (Chaminda Perera, “President committed to implement LLRC recommendations”, Daily News, 1 March 2012).
3 News.lk, “Cabinet approves National Action Plan to implement LLRC recommendations”, 27 July 2012, last accessed 21 August 2012, (Available at http://www.news.lk/news/sri-lanka/2676-cabinet-approves-national-action- plan-to-implement-llrc-recommendations) ; News Line, “Cabinet approves National Action Plan on LLRC”, 26 July
2012, last accessed 21 August 2012, (Available at http://www.priu.gov.lk/news_update/Current_Affairs/ca201207/20120726cabinet_approves_national_action_plan_on_llrc.htm ).
4 Report of the Commission of Inquiry on Lessons Learnt and Reconciliation (LLRC Report), November 2011, para 1.18.
5 The Centre for Policy Alternatives (CPA), Public Statement, “Release of the Lessons Learnt and Reconciliation Commission Report”, January 2012, (Available at http://cpalanka.org/release-of-the-lessons-learnt-and- reconciliation-commission-llrc-report/); CPA, “Question & Answer Sheet on the Resolution tabled at the United Nations Human Rights Council on Sri Lanka, March 2012; Bhavani Fonseka, Luwie Ganeshathasan and Mirak Raheem, “Short Term Benchmarks for Peace and Reconciliation in Post- War Sri Lanka”, CPA, 30 May 2012.
6 CPA translated Chapter 9 of the LLRC Report into Sinhala and Tamil. Furthermore CPA published a simplified version of the recommendations of the LLRC Report (in Sinhala and Tamil).
7 Rasika Somarathna, “LLRC recommendations: Action Plan being finalized”, The Daily News, 8 May 2012; Political
Editor, “LLRC recommendations go to Weeratunga committee, The Sunday Times, 6 May 2012.
8 “Given the complexity and magnitude of the problem and considering the number of persons alleged to have disappeared, and the time consuming nature of the investigations involved, the Commission recommends that a Special Commissioner of Investigation be appointed to investigate alleged disappearances and provide material to the Attorney General to initiate criminal proceedings as appropriate.” (LLRC Report, para 9.51).
9 LLRC Report, para 9.54(a) (An arrested person should be promptly produced before a Magistrate to be dealt with in accordance with the law); LLRC Report, para 9.54(b) (Any change of the place of detention should be promptly notified to the family of the arrested person and the Human Rights Commission of Sri Lanka); LLRC Report, para
9.54(c) (Release from detention should be done through courts) ; LLRC Report, para 9.54(d) (Magistrates should visit
the places of detention every month); LLRC Report, para 9.65 (Any practices which violate the right of access of next of kin to detainees should be removed and relevant authorities in cooperation with the ICRC and voluntary organizations should enhance current facilities for the transportation of the next of kin to visit their family members
at the places of detention); LLRC Report, para 9.67 (All places of detention should be those, which are formally designated as authorized places of detention and no person should be detained in any place other than such authorized places of detention. Strict legal provisions should be followed by the law enforcement authorities in taking persons into custody, such as issuing of a formal receipt of arrest and providing details of the place of detention).
10 The Action Plan claims that armed groups are no longer active. The LLRC Final Report states “Action should also be taken to disarm and put an end to illegal activities of these groups, as it would otherwise present a serious obstacle to the on-going process of reconciliation. In this regard, the Commission strongly reiterates its Interim Recommendation seeking to disarm all illegal armed groups.” (LLRC Report, para 9.74).
11 There are a number of such disparities between the proposed action under the Action Plan and the recommendations made in the Final Report of the LLRC including: (i) on the setting up of an Inter Advisory Committee to monitor detentions and arrests (LLRC Report, 9.57) while the Action Plan response is to use the measures for investigating alleged IHL violations i.e an MOD inquiry (ii) the establishment of an early warning and early diffusing mechanism in consultation with inter-faith groups (LLRC Report, 9.270) while the Action Plan looks at the continuation of Civil Defence Committees and community policing.
12 Defence.lk, “President’s Secretary Sheds Light on Implementation of LLRC Recommendations”, August 10 2012, last accessed 21 August 2012, (Available at http://www.defence.lk/new.asp?fname=President_Secretary_Sheds_Light_on_Implementation_of_LLRC_Recommendations ).
13 The resettlement of Muslim IDPs (LLRC Action plan 9.113 and 9.195) Prosecution of illegal armed groups (LLRC Action plan 9.73 and 9.213) all set out different actions and time lines to deal with the same problem.
14 Provide comprehensive, island-wide human rights education programmes (LLRC Action plan 9.60); Establish an Inter-Agency Task Force mandated to address in a comprehensive manner the needs of women, children, elderly and other vulnerable groups such as disabled affected by conflict, and provide necessary relief and (LLRC Action plan 9.92).
15 National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 (Rights of Internally
Displaced Persons pp. 119 – 130; Right to Life pp. 17-19; Arrest and Detention pp. 20-22; Right to Information p.23; Language Rights p 42 – 43).
16 While the LLRC final report examines the shelling on hospitals in the Vanni it did not explicitly suggest investigations. The Action Plan ignores the issue altogether (LLRC Report para, 4.287- 4.294). The Action Plan provides no rationale for the selectivity of some incidents over others and comes across as further limiting investigations into grave violations.
17 The actions pertain to the National Police Commission and the Public Service Commission.
18 De- link the Police Department from The Ministry of Defence (LLRC Action Plan 9.214); Constitutional provision for judicial review of legislation (LLRC Action Plan 9.228); Develop consensus among political parties on devolution (LLRC Action Plan 9.236 and 9.237); Singing of national anthem in both languages (LLRC Action Plan 9.277);
Proposal to establish national land commission (LLRC Action Plan 9.150); Bi- Partisan understanding on use of land (LLRC Action Plan 9.152).
19 The TNA has questioned the purpose of two parallel processes for arriving at a political solution and the Government’s lack of commitment to the Government-TNA talks. A number of other opposition parties have also not yet nominated members to the PSC as of July 2012.
20 LLRC Action Plan 9.124 (Appoint a 4th Land Commission); LLRC Action Plan 9.251 (Experts committee to examine the current policy when admitting students to Universities); LLRC Action Plan 9.257 (Experts committee to ensure public Universities have ethnically mixed student populations with a choice of courses offered in all three languages.)
21 CPA, “A List of Commissions of Inquiry and Committees Appointed by the Government of Sri Lanka (2006 –
2012)”, March 2012, last accessed on 21 August 2012, (Available at http://www.scribd.com/doc/85007346/A-List-of- Commissions-of-Inquiry-and-Committees-Appointed-by-the-Government-of-Sri-Lanka-2006-%E2%80%93-2012).
22 See LLRC Action Plan 9.171, 9.227.
23 The Action Plan suggests activities for disarming individuals (LLRC Action plan 9.204) and conducting investigations into specific allegations against specific armed groups (LLRC Action plan 9.207- 9.209). The interim recommendation of LLRC called for the disarming of illegal armed groups, a recommendation which was repeated in the LLRC final report. See LLRC Report, para 9.74 and 9.210
24 The Action Plan claims that “During the time of the conflict, illegal armed groups were known to operate in the theatre of conflict. Steps have been taken to completely eliminate this activity.” (See LLRC Action Plan, 9.73)
25 See LLRC Action Plan 9.48, 9.51, 9.73.
26 The KPI “A marked reduction or withdrawal of security force personnel for civil activities” there are questions as to what would constitute a “marked reduction”? Is it reliant on data provided by the Government? This is of concern when there is no scope at present to do an independent assessment of this area. Also see LLRC Action Plan 9.73 (“The effective maintenance of law and order”).
27 News Line, “LLRC report translated into Sinhala and Tamil”, 17 August 2012, last accessed 21 August 2012, (Available at http://www.priu.gov.lk/news_update/Current_Affairs/ca201208/20120817llrc_report_translated_into_sinhala_and_ta mil.htm)