A Legal Framework for National Reconciliation: The Way Forward

The following speech delivered by Former President Madame Chandrika Bandaranaike Kumaratunga, Chairperson of the ONUR,  at the29th LAWASIA Conference – Golden Jubilee Conference, held in Colombo, Sri Lanka from 12 – 15 August 2016

 It is with great pleasure that I accepted the invitation of the LAWA

SIA hosts to address this distinguished gathering. The legal fraternity, both Bench and Bar have a vital role to play, and are playing, in the life of this country. I am aware that LAWASIA is committed to the Rule of Law, Good Governance and the protection of human rights.

I take this opportunity to salute the members of the legal fraternity for their courageous and principled actions to uphold democratic rule in Sri Lanka, on several occasions when Freedom & Democratic Governance were under severe threat.  You did so at grave risk to your personal safety.

Since the adoption of Democracy as a form of Government, many centuries ago, the Law and its practitioners – Judges and Lawyers – have been called upon to play a most essential role as guardians of Democracy and democratic institutions and guarantors of their proper functioning.

As a staunch and unwavering believer in Democracy, I wish to present my deep appreciation to the legal communities of Asia.

I wish to present to you some thoughts on “A Legal Framework for National Reconciliation and the Way Forward”.  I don’t believe I need to go into great detail as I am aware that I address today an erudite body of legal professionals.

The word reconcile comes from the mid-14century French reconcilier derived from the Latin word meaning “to bring together again; regain; win over again, to make friendly or to restore friendly relations”.

What is Reconciliation ?  Reconciliation is required in circumstances where conflicts exist or have existed.  Reconciliation takes place when the parties in conflict are brought together with the objective of resolving those issues that cause the conflict.  It may happen between individuals or, more importantly, between communities living within a society and thereby Reconciliation could be achieved within society as a whole.

Reconciliation between feuding communities in a Nation is a process that is achieved over time.  It cannot be imposed by the State or any other authority.  Reconciliation can be promoted or facilitated by the State or any other persons in authority.  It requires a multi faceted, multi pronged approach which deals with the diverse aspects of the root causes of the said conflict –  Reconciliation must be preceded primarily by programmes and actions to build confidence between the conflicting parties, as well as willingness to understand and forgive, at least to some extent, by the victims.  The perpetrators, on their part, must be willing to engage in the difficult exercise of understanding the suffering of the victims or the other party commonly known as “the enemy”.

Ø  The State must have the political will to engage in an honest process of Reconciliation.  This requires numerous actions by the State.

Ø  Firstly a pluralist State with a democratic Government practicing Good Governance.  This implies that all fundamental rights and freedoms of the individual are guaranteed through the Constitution.  The Constitution should guarantee to All – equality and non-discrimination such as equal opportunities for education and employment, the right to safeguard and promote the language, religion and culture of each different community and so on.

Ø  In a multi religious, multi ethnic, multi cultural State such as Sri Lanka, which has experienced intense communal strife, it is essential for the State to adopt practices of a secular State, even if the majority religion needs to be accorded special place.

Ø  It is also important to ensure that the main Institutions of the Executive, such as the Public Service and the Police remain independent, as well as the Judiciary.  To guarantee this, Sri Lanka has adopted a policy of setting up independent Commissions accountable only to Parliament for : Human Rights, The Judiciary, Public Service, The Police, Bribery & Corruption  etc.

I reiterate that in a multi-ethnic multi-religious and cultural nation, Reconciliation requires a pluralist, secular and democratic State, without which it will not be possible to achieve Reconciliation.

We in Sri Lanka have lived through a 25-year long armed conflict which pitted the State in a bitter civil war against rebel groups from the Northern and Eastern Provinces – a war that gave rise to one of the world’s most ruthless terrorist groups.  This has caused a considerable amount of hatred, anger and distrust between the diverse communities.

The war is over.  We have won the war but we have not yet won peace.

The Government that brought an end to the war failed to adopt a policy of Reconciliation.

I feel it is pertinent, at this juncture, to look at the case of Sri Lanka.  I shall focus on the possible causes of these problems and the options we have for its resolution.

The ethnic problem of Sri Lanka has led to political conflict, violence and terrorism.  Problems began to arise between the three major communities that had lived in harmony and peace for many centuries, after de-colonisation in 1948.  The leaders of all communities living in Sri Lanka fought side by side on a common platform for Independence.  With the emergence of independent Sri Lanka after nearly five centuries, the various communities awakened to the existence of their rights – ethnic, linguistic and religious – individually and collectively.  Similarly to other newly independent nations, the majority community in Sri Lanka established itself within the political power structures, claiming their rights in the economic, social and cultural spheres, setting up laws, institutions and practices to guarantee their privileges to the exclusion of the “other” that are the minorities.  The ruling elite, comprised mainly of the majority community, arrogated an unequal share of opportunities to itself, while excluding the others.

Hence, as in many other countries, “identity” became a major platform for demands of minority communities.  People felt that discrimination was occurring due to their specific identity, which was different from that of the ruling majority.  Perceptions of discrimination and non-recognition of rights of different groups has led to conflict all over the world.  Poverty and deprivation, the non-recognition of ethnicity, language and religious rights are all cited as causes for conflict.

We must adopt a holistic view of conflict, their genesis and causes.  In recent times, scholars hold that the main cause of dissent and violent conflict is the existence of inequalities among different groups and communities living in a country.  Inequality, deprivation and discrimination should be looked at not only in economic terms but measured in social, cultural and political terms.

Perceived injustice engenders violent or terroristic responses from the victims of that injustice.  Frustration and despair caused by continued social marginalization, economic deprivation and political defeat has been known to result in violence.  It was said that “young hope betrayed, transforms itself into bombs”.  Leon Trotsky described the two emotions central to terrorism as despair and vengeance.

It has also been affirmed that poverty, injustice and inequality and their relationship to conflict may be measured by the difference in opportunities for the excluded.  The denial of rights to the excluded of certain groups with a common identity, becomes the bedrock of dissent and violent conflict.

Governments have often actively engaged in discriminatory policies against minority groups.  History is replete with examples of Governments employing, as a tool of Government management, the concept of the “other”, represented as the “enemy”,.  For a large part of human history the “enemy” has helped entrench weak rulers and Governments in power.  Governments whip up hatred against the “other” by maintaining the myth of the dichotomy between “us” and “them”.  This requires the oppression of the other and the denial of their rights.  Such exclusion takes place not only through outright hostility but also through neglect of minority groups.

Differences among diverse communities living within a country have been exacerbated by rulers, to their advantage. They tend to conjure up “an enemy” from peoples who belong to different other communities.

In Sri Lanka, extremist Sinhalese groups as well as the LTTE, have engaged actively in promoting this concept.  I affirm that in Sri Lanka, the constant economic, social, cultural deprivation of the Northern and Eastern regions is clearly related to the violent conflict we have witnessed.  Low levels of development of infrastructure, relatively little opportunity to access quality education and employment, political marginalization with minimal opportunity to participate in decision-making processes in the political and administrative superstructures, are undoubtedly the root causes that gave rise to the violent conflict.

The consistent rejection by the State of the demand of the Tamil movements for language parity, led to increased demands for power sharing through Federalism, and finally the demand for a separate State.

It is important to reiterate that numerous studies of many countries have ascertained that when all communities living within a State are guaranteed equal opportunities – in the socio-economic and political spheres,  and their separate identities are respected and given free expression, they will become a productive, vibrant part of the State, celebrating the richness of its diversity, while political stability, prosperity and peace prevails in such societies.

They are Cohesive, Shared or Inclusive Societies.

It is a society where the political, governmental and societal structures are designed to allow the equitable distribution of and equal access to the benefits of development and prosperity for All, irrespective of the community to which they belong.  The Constitution of the State, its political structures such as Parliament and other elected bodies, its government and administrative structures will all have to be constructed in a manner as to accommodate free and active participation of All, in political and governmental processes, in other words political power-sharing, as well as the guarantee of equal rights to all.

Sustainable development, prosperity and peace necessarily imply that the “other” be brought in and included fully and honestly, as full and equal partners of the processes of government.

To end poverty, hunger and inequality in a durable manner, we need inclusive and sustainable development and an inclusive society.  Without this, conflict and destruction will ensue.

Stewart and Brown in an Oxford University study affirm that horizontal inequalities occurring between specific groups cause deep resentment, resulting in violent struggles.  They hold that violence in multi-religious and multi-ethnic Nations is not caused by the presence of diversity or by the “clash of civilizations” as propounded by Huntingdon, but is due to the exclusion of the less powerful groups from an equal share of benefits.  The marginalized groups then mobilize around their group identity – be it religious, ethnic, linguistic, ideological.

The most potent source of violent conflict today is identity.

I could cite examples of many countries where fundamental rights are guaranteed and benefits of development as well as political power are shared equitably, resulting in the creation of inclusive and shared societies.  These countries have successfully resolved conflicts by adopting policies of inclusivity.

The experience of these countries is proof enough that peace ensues when benefits of development and political power are equally shared, effectively building inclusive Nations.

The challenge of the 21st Century for many Nations remains the enterprise of erecting pluralist, multi-ethnic, multi cultural States.  This requires that we manage the existing diversity within our Nations, directing the richness of this diversity towards positive change in order to build Free, Democratic and Prosperous Societies.  We need to accept and celebrate diversity, not reject it.  The combined efforts and skills of peoples of different communities can only enrich our Societies, not damage them.

Leaders and citizens must recognize the value of Diversity, rejoice in its richness and limitless potential and strive to build Unity in Diversity.

This is the only effective recipe, I am aware of, for lasting Peace.

Several factors must converge to effectively commence Reconciliation.

Ø  Firstly, the political will of the Government and the State to honestly promote the process of Reconciliation between the different communities of the Nation.

Ø  The transformation of attitudes of citizens towards members of other communities.  This would require medium and long-term programmes which will take time to produce positive results.  This too could only be achieved if the State creates the ambience and prepares the ground through democratic governance and recognition of the rights of all.

Ø  A concerted action plan for building trust and mutual confidence, led by Government authorities and civil society, including Religious leaders, professionals, business leaders, academics and NGO’S.

As you are aware, Sri Lanka underwent a radical change in regime in January 2015, bringing in a new Government which has committed itself fully to do all that is required to build a lasting peace in our country.  The present Government has adopted many measures towards realizing this goal.  I shall enumerate a few:-

Ø  The Government of Sri Lanka faced a serious challenge to maintain its position as a responsible member of the international community.  The previous Government had violated international obligations in the sphere of Human Rights and Good Governance.

  • Two Resolutions were adopted at the Human Rights Committee in Geneva against Sri Lanka.
  • Relations with the International Community, as well as bilateral relations with other States were at an all time low.

Ø  The new Government was called upon to clean up the stables and bring back the horse, after it was chased out.

  • Built confidence among the International Community by its stated policies regarding Human Rights, Democracy, Government responsibility to promote transitional justice and Reconciliation and its commitment to achieve a durable peace.

Ø  The Government engaged in several actions towards achieving this :-

The government successfully managed to transform a wholly disadvantageous situation to one of taking ownership and control of the contentious issues, by co-sponsoring a new UNHRC Resolution in October last year, whereby the Government of Sri Lanka undertook to implement mechanisms to ensure justice, accountability and non-recurrence – in other words, the process of Reconciliation.

Ø  The Four pillars of the Peace & Reconciliation Mechanism

  • Truth & Reconciliation Commission
  • Missing Persons
  • Reparations
  • Non Recurrence

The Secretariat for Co-ordinating Reconciliation Mechanisms (SCRM) for co-ordination.

Ø  On one hand the Government has commenced the process of Constitutional Reform.  A Constitutional Assembly has been set up as a Committee of Parliament and it is continually holding sittings in order to arrive at a consensus between the representatives of the different communities with regard to amendments required to be brought into the Constitution to resolve the minorities question.  Other work has taken place parallaly where the main stake-holders have held discussions to arrive at a consensus proposal which has been presented to the Constitutional Assembly for consideration.  Political leaders, especially the President and the Prime Minister and Government leaders have continually stated publicly that they are committed to Constitutional reform in order to guarantee minority rights.

Ø  We are aware that Constitutional reform in itself will not suffice to heal the pain, suffering and anger caused by years of bloody conflict and to bring divided communities together in friendship and with understanding in order that they co-exist in peace and harmony.

The Government has therefore, for the first time in this country, created institutions of the State to undertake action to build Reconciliation.

Ø  The Office for National Unity and Reconciliation (ONUR) was created with the mission to build a pluralist, inclusive society where all Sri Lankans co-exist in harmony and unity with equal opportunities in the economic, social, cultural and political spheres.  ONUR has the task of promoting a society that respects fundamental rights and freedoms, the Rule of Law and to promote Reconciliation through respect for other’s identity where the richness of diversity is celebrated and not rejected.  I chair ONUR.  It reports directly to the President through the Ministry of National Unity & Reconciliation, which is under the President.

Ø  The Ministry of Resettlement & Reconstruction was created to re-distribute land owned by individuals back to the owners and to resettle them on their land by assisting them to build housing and related infrastructure.

Ø  A third Ministry – for National Dialogue, responsible for implementing language policy, which has been implemented by default since the enactment of the first Bill regarding language rights in 1957, and other relevant Acts and Laws.

ONUR has designed coherent mechanisms and processes in the form of a road map for promoting national unity and Reconciliation.  ONUR formulates policies and programmes for Reconciliation, seeks funding and leads implementation of these programmes through the Central Government and Provincial Councils as well as NGO’s.

If I may enumerate briefly the essential work of ONUR :-

Ø  ONUR is actively pursuing the task of restoring land in the North and East taken over by the Forces during the war to their original owners under the leadership of the President & Prime Minister.

Ø  We have played a role in facilitating the Constitutional Reforms process.

Ø  ONUR has created a Tri-Lingual Resource Pool to facilitate the work of Government in all three languages.

Ø  We believe that Reconciliation or any sustainable change is not possible unless the hearts and minds of people are effectively changed, in order that they accept diversity rather than reject it; that they understand the “other” and that the privileges that are enjoyed by one community must be shared in order to lay the foundation for a just society where all citizens live in harmony and in dignity.  Everyone must realize that sharing privileges they enjoy will not damage their interests but enrich it.

Ø  In this objective we are implementing a comprehensive programme for school students.  This includes Curriculum Reform, Teacher Training to give leadership for Reconciliation, training and activities of children of all communities who live, work and engage in activities together for several days.

Ø  Then we have another programme for adults.  This spreads out extensively through the country, bringing groups of adults of different communities and different professions together with religious leaders of the four major religions, to engage in workshops which make them aware of the nature and effects of conflict on the one hand and on the other how to transform conflict in society.  This programme in the first year will touch around 12,000 people.

Ø  ONUR also utilizes performing Arts to take the message of peace and Reconciliation to the widest corners of the country.  We work with individual Artistes and Artistes’ Groups.

Legal Aspects

Let us now briefly consider the role that the Law can and must play in the process of Reconciliation undertaken by the Government.  The Law, the Judiciary and the legal community plays an essential role in this process.

Ø  The Law must guarantee through the Constitution fundamental rights and freedoms.

Ø  It must also make provision for Good Governance.  This implies the proper functioning of democracy and democratic institutions, laws to prevent and punish corruption in Government.

Ø  In the present Sri Lanka context, new laws will have to be promulgated to ensure transitional justice.  Parliament has just approved a law to deal with seething problems of missing persons.  Many such laws will have to be conceptualized, promulgated and implemented.

The role of the Law in all this would be to provide an effective legal framework such as that which I enumerated now, to deal with some of the essential aspects of Reconciliation.  These will be   :-

Ø  The issue of missing persons

Ø  Reparation for missing and dead persons.

Ø  Return of land taken over during the war by Government to its legal owners

Ø  Assisting in the construction of housing and infrastructure

Ø  To re-settle those displaced, or those who have lost their houses during the conflict.

Ø  Laws must also be creatively formulated to prevent hate speech and hate actions and to amend any legal statements and clauses that encourage communal tensions.

Ø  Most importantly, we would need a strong and independent Judiciary without political influence.  The legal fraternity, as you would already have taken note, can play an essential role in the establishment and proper functionings of the required legal framework for Reconciliation.

I take this opportunity to urge the legal community of Sri Lanka to actively engage in assisting the Reconciliation processes I have described today.  In addition to being guardians of the Law, Lawyers have the advantage of interacting daily with considerable numbers of people.  You are respected members of our society.  You could therefore fulfill an essential role in convincing colleagues, clients and other people about the crucial importance on Reconciliation and building a new Sri Lankan society working towards a lasting peace.  You could do this individually, as groups, or within your Associations and also by participating in the programmes implemented by ONUR and other institutions of Government for Reconciliation.  You could act as watchdogs guaranteeing the non-recurrence of various actions and events that could lead to the commencement of hostilities once again.

We need your wise counsel as to whether a country emerging from a bitter conflict that lasted over an entire generation could expeditiously address grievances and loss through the existing structure of the judicial system.  Would we need to set up special tribunals or structures to deal with the specific issues arising from the conflict and post conflict contexts?  These are questions of profound significance that are now exercising the minds of the leaders of our nation.