The National Peace Council (NPC)

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NEED FOR BOTH EXTERNAL AND INTERNAL CHAMPIONS OF THE RECONCILIATION PROCESS--Jehan Perera

At the next session of the UN Human Rights Council this March the government will need to present an update of its progress with regard to the resolution passed in October 2015. There has been some progress made by the government. More and more land in the North taken over by the military during the war is being returned, although about half of it still remains under military control. There has been a marked improvement in the freedom of movement and freedom of speech experienced in all parts of the country, and particularly in the former conflict zones. However, so far there has been little visible progress on establishing the mechanisms outlined by Foreign Minister Mangala Samaraweera in the run up to the last session of the UN Human Rights Council last year. It was in this context that his visit to the United States and the positive US endorsement of the Sri Lanka’s reconciliation process is important.

The new government earned much international goodwill for Sri Lanka last year in Geneva when it reversed the policy of the previous government. This had been to largely showcase the reports of the Lessons Learnt and Reconciliation Commission and the Missing Persons Commission as adequate to address the problems of the past. With regard to human rights violations alleged to have been committed by the Sri Lankan military the former government appointed military tribunals that did not find anything of substance that called for further action. By way of contrast, speaking in Geneva on behalf of the government, Foreign Minister Samaraweera said that the government planned to deal with the past through a fourfold system that would include a Commission for Truth, Justice, Reconciliation with a Compassionate Council of religious clergy attached to it, an Office of Missing Persons, a judicial mechanism with special counsel to be set up by statute and an Office of Reparations.

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THE NEED TO ADDRESS THE ROOTS OF CONFLICT WITH PUBLIC PARTICIPATION--Jehan Perera

February 22 marks the anniversary of the signing of the Ceasefire Agreement in 2002 between the government and LTTE with Norwegian facilitation. This was an unexpected development that brought hope to the country that the war would come to an end and a peaceful solution to the ethnic conflict would be possible. Faced with the prospect of economic collapse, and a protracted war, the government of that time headed by Prime Minister Ranil Wickremesinghe sought to break the stalemate with a bold initiative. The sudden cessation of armed conflict came as a relief to the general population and almost immediately the wounds of war began to heal with people traveling for business and tourism from the north to the south and to the east. The benefits to the people of the peace process made it seem that it had become irreversible. But what was not seen so well at that time was that the ceasefire was only the start of the process, not its end. There needed to be a sustainable political solution that addressed the roots of the conflict.

The ceasefire agreement brought the country respite for four years from a war that had sapped its strength, and led the economy to shrink rather than to expand. If it had succeeded it would have saved tens of thousands of lives and obtained enormous economic resources for the country with the active support of the international community. After the ceasefire broke down in early 2006 the Ceasefire Agreement became seen as a political liability to the government that had signed it. The fact that neither the opposition nor the LTTE assisted the government to come up with a political solution was lost sight of. The ceasefire agreement became a subject of vilification for giving in to the international community and to the LTTE. The only ones who explained what it meant to the country were those who opposed it tooth and nail, and they gave it a one-sided interpretation. The ceasefire agreement of 2002 continues to be criticized for this even to this day by the nationalists and opposition politicians.

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GOVERNMENT AND NOT UN IS ENTRUSTED WITH TASK OF NATIONAL RECONCILIATION--Jehan Perera

The visit of UN High Commisssioner for Human Rights Zeid Ra’ad Al Hussein went more smoothly than expected for the government. The weeks before the visit of the High Commissioner had seen President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe making apparently contradictory statements on the issue of international participation in the post-war reconciliation mechanisms, especially in relation to the judiciary and accountability. This led to concern about the possibility of the government backtracking on the commitments it had made as a co-signatory to the UNHRC resolution in Geneva in October 2015. There was also concern that the visiting UN dignitary would be critical of the government’s approach to the post-war reconciliation process while in the country.

High Commissioner Zeid’s critical comments during his stay in Sri Lanka on the politicization and failures of the Sri Lankan judiciary prompted angry rebuttals in Sri Lanka and also led to the inference that he was making the case for international participation in the accountability process. A fixed and narrow position on this issue by the international community will place the government in a difficult position. The core of the political opposition to the transitional justice process within the country is the concern that the international community is eroding the country’s sovereignty with its insistence on the participation of foreign and Commonwealth judges, prosecutors and investigators as specified in the UNHRC resolution. It is this issue that the political opposition is likely to capitalize in order to weaken the government.

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PRESIDENT REAFFIRMS COMMITMENT TO RECONCILIATION PROCESS--Jehan Perera

Prior to Independence Day there was an increasing concern about the extent of President Maithripala Sirisena’s commitment to the reconciliation process. These doubts surfaced with the President’s declaration that there would be no international involvement on issues arising from the war. He followed this up by saying that no war crimes had been committed in Sri Lanka and that the UN report only alleged human rights violations. Both of these assertions were given wide media publicity. They contradicted the government’s agreement with the UN Human Rights Council regarding international participation of foreign judges, prosecutors and investigators in a judicial accountability mechanism. It was left to Prime Minister Ranil Wickremesinghe to exercise his damage control skills and assure the international community that Sri Lanka would stand by its international commitments.

In the course of his Independence Day speech President Sirisena fell in line with the Prime Minister’s position. He said “There are incorrect interpretations given about the resolution presented to the United Nations Human Rights Council. I clearly state that we are facing these resolutions in order to protect the pride and dignity of our country, our people and our security forces, and also to make our tri forces to be internationally renowned armed force. We should face these resolutions with patience, discipline and decorum so that our country could be respectfully recognized by all international organizations including the UNO and all states in the world.” This change of direction ensured that the visit of UN Human Rights High Commissioner Zeid Ra'ad Al Hussein to Sri Lanka would not start on a note of fundamental disagreement.

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THE POLITICAL CHALLENGE OF CARRYING THE PEOPLE THROUGH TRANSITIONAL JUSTICE--Jehan Perera

President Maithripala Sirisena’s rejection of foreign involvement in the judicial accountability process in Sri Lanka has once again brought to the fore the difficult issue of war crimes in the course of the war. The most controversial aspect of the UN Human Rights Council resolution that was co-signed by the Sri Lankan government last October was the need for international participation in the judicial accountability mechanism. The UNHRC resolution stated that it “affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorised prosecutors and investigators.”

It was the issue of accountability for war crimes and other serious human rights violations that from 2009, the very year that the war ended, pitted the Sri Lankan government against the Western –led international community. The position of the former government was one of total rejection of any international role in looking at the past. The former government claimed that no war crimes had occurred and, in any event, the war was an internal one and the international community had no role in deciding how to deal with issues that had arisen from it. However, the government failed to impress enough members of the UN Human Rights Council, which ensured that Sri Lanka faced repeated defeats when it came to the passage of resolutions that called upon the Sri Lankan government to delve credibly into the past.

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TRANSITIONAL JUSTICE PROCESS NEEDS TO BECOME MORE INCLUSIVE--Jehan Perera

A high level delegation of EU officials was in Sri Lanka last week to have meetings with a cross section of society prior to engaging in discussions with their counterparts in the Sri Lankan government. When they met with civil society representatives they said that this was the first joint meeting on issues of human rights with the government and saw this as a positive breakthrough. They also said that they had come to see what had been delivered by the government in terms of the promises it had made. The media release that they issued after a joint EU-Sri Lanka Working Group on Governance, Rule of Law and Human Rights concluded its first meeting in Colombo on 21 January 2016 stated that they expected the full implementation of the UN Human Rights Council resolution as a priority.

During the visit of the EU delegation to Sri Lanka, Sri Lanka's Deputy Foreign Minister Dr. Harsha de Silva said he was confident that Sri Lanka will regain the EU’s Generalized System of Preferences plus (GSP+) facility during this year. The EU, citing Sri Lanka's failure to meet human rights conventions relevant for benefits under the scheme, in August 2010, suspended the GSP+ tariff concession for Sri Lanka that provided tax free access to European markets for the country's products, especially for garment exports which was Sri Lanka's second largest foreign exchange earner next to worker remittances. This illustrates the holistic dimension of the UN Human Rights Council resolution. It is not only about accountability and war crimes. It is also a matter of employment and the development of the economy.

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NON-STOP ATTEMPTS TO USE ETHNIC NATIONALISM AS A POLITICAL STRATEGY--Jehan Perera

The participation of Prime Minister Ranil Wickremesinghe, former President Chandrika Kumaratunga and visiting British Minister Hugo Swire at the Thai Pongal celebration in Jaffna is an indication of the special attention that is being given to the northern polity by the government. The top leaders of the government have been making frequent visits to the north in a way that is unprecedented. During the years of the war it was dangerous for government leaders to visit the north as they were vulnerable to being attacked by the LTTE and other militant groups. But even prior to the war there was reluctance on the part of leaders of government to visit the north. Neville Jayaweera, in his memoirs of his time as a civil servant who dealt with the north five decades ago, writes about the petty manner in which the government leaders of those years turned down opportunities to visit the north. In contrast, President Sirisena and Prime Minister Wickremesinghe are frequent travelers to the north.

However, in his speech in Jaffna on the occasion of Thai Pongal, and with the Prime Minister and British Minister in attendance, Chief Minister of the Northern Province, C V Wigneswaran was extremely critical in his assessments, claiming the presence of 150,000 soldiers as particularly detrimental to the restoration of normalcy. He spoke of the failure to free more land held by the military and the failure to abolish the Prevention of Terrorism Act. He also blamed the government of interfering in the work of the Northern Provincial Council and complained over letters being sent to him from State institutions written in the Sinhala language. The slow progress made in terms of restoring normalcy to the lives of those large numbers of people living in the north and east who are war-affected has elicited sharp and strident criticism from a wide arrange of politicians and civil society activists.

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INGREDIENTS FOR NEW CONSTITUTION ARE IN PLACE--Jehan Perera

The government set the stage for the drafting of a new constitution when Prime Minister Ranil Wickremesinghe presented a resolution to Parliament on January 9 that would convene it as a constitutional assembly. The timing was symbolically important as this was the date that marked the commencement of President Maithripala Sirisena’s second year in office. President Sirisena was also in Parliament to make a special address to Parliament. The president’s commitment to stripping himself of the extraordinary powers of the presidency from the very beginning of his first term is without parallel in modern history. Within five months of his presidential election victory he ensured the passage of the 19th Amendment which, as a first step, reduced the powers of the presidency which he would henceforth wield. Now with the convening of parliament as a constitutional assembly he is paving the way for the total abolition of the office he holds.

It is significant that the government did not press for a vote on the resolution that sets up parliament to be a constitutional assembly. Instead it heeded the views expressed by those in the opposition who wished to make amendments to the resolution presented by the prime minister. Constitutional reforms of the past were driven by governments that excluded those who were from the opposition, either purposely or because the opposition refused to cooperate. The past constitutional reforms were partisan exercises by the ruling party, both to impose their visions of the future as well as to gain petty advantages even while claiming they were engaging in reform in the national interest. However, this time around the government is trying to make the constitutional reform process to be a consensual one. Most areas of reform are indeed ones on which there is a great deal of national consensus.

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MEETING EXPECTATIONS NECESSARY TO MAINTAIN SUPPORT FOR RECONCILIATION--Jehan Perera

The government has been responsive to public pressure in multifold ways. It amended the budget in 16 different areas due to protests by trade unions and affected groups even though the budget deficit grew by more billions. It is investigating a case of abduction by one of its members. It has been responsive to concerns expressed by civil society about the absence of participation in both the constitutional reform and transitional justice processes. Prime Minister, Ranil Wickremesinghe has appointed a 24-member committee from political and civil society to obtain views on constitutional reforms from the public. This Committee will seek oral and written submissions from the public and a report will handed to a Cabinet Sub Committee on Constitutional Reforms. In addition Foreign Minister Mangala Samaraweera has appointed an 11 member committee to discuss and provide input on issues pertaining to the Geneva process.

It is important in a democracy that the people believe their government is prepared to both listen to them and change its decisions accordingly. On the other hand, the government has to balance the national interest as against the interests of specific groups, and to look at short term in relation to long term interests both for itself and the country. Embedded in both the constitutional reform process and the transitional justice process are potentially explosive issues which can be exploited by extreme nationalists and opposition parties for political gain. Even at present the issues highlighted in the resolution of the UN Human Rights Council that Sri Lanka co-sponsored in Geneva, which relate also to truth seeking, reparations and institutional reforms, are being distorted as being solely about war crimes and taking war heroes to The Hague for trial by international tribunals.

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GIVING PRIORITY TO CONSTITUTIONAL REFORM--Jehan Perera

The dawn of the New Year will see Parliament convening as a parliamentary committee of the whole to start the process of constitutional reform.  This will be only the second time since the last constitution was made in 1978 that there will be a dedicated effort at constitutional reform.  The previous occasion was in 2000 when former President Chandrika Kumaratunga presented a constitutional bill to Parliament which was literally burnt by the opposition. The promise to amend the constitution was made by government leaders at both the last presidential and general elections that took place in January and August of this year.  Their main pledge was to abolish the executive presidency and to change the electoral system from one based on proportional representation to a mixed system of proportional representation and first-past-the-post voting in which parliamentary seats would be apportioned in proportion to the total number of votes obtained by each of the political parties.

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ACTIVE PEACE BUILDING REMAINS NECESSARY TO GARNER WESTERN SUPPORT--Jehan Perera

The election of President Maithripala Sirisena in January this year and the formation of a new government led to an immediate improvement of Sri Lanka’s relations with the western world. This relationship had become increasingly strained during the period of the last government and was getting progressively worsened. However this improvement in relations cannot be taken for granted if it is to yield concrete benefits to the country. One example has been the attempt to get back the the European Union’s GSP Plus tariff benefits that enables Sri Lankan exports to enter the European markets at lower rates of tax which gives them a cost advantage over other countries. Mere goodwill is not enough to meet the standardized EU criteria. There are several targets that the country has to meet if it is to obtain the tariff benefits that it lost five years ago. The criteria that the previous government failed in achieving related to human rights and post war reconciliation.

The government has recently announced that it will set up a Secretariat for Reconciliation that will coordinate the different government agencies that have been earmarked for this purpose. When there are multiple agencies that are dedicated to the same broad objectives, there is likely to be overlap between their activities and even rivalries on the ground, unless they are coordinated. Therefore it has been proposed that the new secretariat will develop a plan on proposed new institutions such as the Office on Missing Persons and the Truth, Reconciliation and Prevention of Conflicts Commission. These were identified by the government in the days prior to the last session of the UN Human Rights Council in Geneva in September. The Secretariat will be responsible for the coordination of other requirements related to strengthening the rule of law, human rights and administrative and judicial reforms as well.

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