Draft national policy on reconciliation - Part III:

The ideal of a three-tier government

Prof. Rajiva Wijesinha, MP Advisor on Reconciliation to the President

*Government shall ensure the return to their original places of inhabitation of all those displaced, Tamil and Muslim and Sinhala and shall promote living conditions, including access to educational and health and transport facilities, in advance of those available previously. Government shall fast forward the process of ensuring title for such returnees. Where such return is not possible, for reasons based on clearly enunciated national policies, equivalent lands in nearby areas should be provided with appropriate title deeds and facilities. The government shall in particular facilitate the early return of the displaced Muslims to their places of origin in the Northern Province. Closely associated would be immediate steps to assist in re-building of the mosques, houses and schools destroyed or damaged by the LTTE.

*It is recognized that all victims of the conflict merit compensation, but provision of this through financial grants may not be possible, given practical limitations on state funds. Instead the needs of victims may be addressed through preferential policies, which may include scholarships, loans on easy payment, etc

B. Political participation and administrative accountability

It is acknowledged that grievances have been exacerbated by a sense of frustration that the political process has been hijacked by those in power.

This contributed also to two youth insurrections in the South, but this sense in the North has been reinforced by the absence of political leaders from that area contributing to decision making, with regard both to national questions as well as those affecting the regions.

In addition, it is generally accepted that decision making on many matters cannot be left to central government, which is often unaware of the ground situation, and has little political incentive to provide swift solutions to problems. This makes both devolution, with regard to policy decisions in certain matters, and decentralization, to ensure swift responses in most areas, a matter of urgency. The ideal therefore is three-tiers of government, with clear cut responsibilities, and systems of accountability, to ensure the best possible service to the people.

As a matter of urgency therefore, political negotiations should lead to a readjustment of the constitution, to promote empowerment of the people. Whilst some matters, in particular those pertaining to national security, interpreted in the broadest sense to ensure financial and food and environmental security etc in addition to physical security, must be the preserve of the Centre, but it is therefore important that the regions too should have a voice in decision making in this regard.

With regard to other matters, it is important to ensure maximum flexibility and safeguards for the citizens of any particular area, whilst preventing hijacking of decision making by parochial considerations. It is therefore vital to formulate, with full consultation, national policy on vital issues such as land and land alienation, education, environmental protection, etc, but to promote decision making at the smallest appropriate levels, in accordance with the doctrine of subsidiarity.

For this purpose the three communities must work hard to create governance, administrative and social structures that create and foster interdependence among them. This will help create the feeling in each of the communities that their progress or downfall is inextricably linked with the progress or downfall of the other communities and thus help to inculcate a strong sense of nationhood among Sri Lankans.

For this purpose;

*The constitution shall be amended to provide for a Second Chamber of Parliament based on the principle of equal representation for all Provinces. Legislation in particular areas should require the consent of two thirds of the Senate in addition to two thirds of the First Chamber, to facilitate a check on legislation that might seem majoritarian in intent. Ordinary legislation shall require to be passed in the Second Chamber too, with provision for joint sessions to resolve any dispute after the passing of a prescribed period.

*Recognizing that the current time frame provided in the Constitution of Sri Lanka for canvassing constitutionality of proposed legislation before the Supreme Court is grossly inadequate, and further recognizing that public intervention regarding proposed legislation is an integral part of a vibrant democracy, the Government shall make endeavours to reach a consensus on an appropriate constitutional amendment, to provide for an adequate time frame to challenge proposed legislation. Post-enactment judicial review for a prescribed period of time after the passing of legislation shall also be made possible, to ensure conformity with the Constitution and its provisions regarding Rights

*Discussions with a prescribed time frame shall be held to remove current ambiguities with regard to the Concurrent List as provided for in the current Constitution. It should be reduced as much as possible, with most functions being allocated to the Province or to smaller units with close systems of public accountability. Provision should be made for working according to National Policy in some particulars, and in others according to Provincial Policy. Where concurrence seems essential, there should be clear mechanisms for resolving disputes based on consultation.

*Financial provision should be clearly made for Provincial authorities by the Centre, and for local authorities by the Province, with autonomy as to usage subject to established guidelines.

*In order to ensure that there is no political interference in the public service and that recruitment and promotions in the public service are in conformity with the equality provisions in the Constitution, the government shall work towards the establishment of an Independent Public Service Commission without delay. Measures shall also be taken to ensure the independence of the judiciary and the police with regard to the appointment process as well as in their functioning

*Efforts should be made to make the public service and the police inclusive of all communities with special attention to ensuring adequate representation of the population in any area. Though this should not take away from the principle of merit based recruitment and promotion, positive discrimination may be necessary for a limited period to restore the balance with regard to services where currently such balance is lacking

*Ensuring at least bilingualism in the public service and other professions serving the public should be ensured, whilst nationally the culture of trilingualism should be fostered by making passes in any two of the National Languages compulsory, along with Mathematics, at the GCE Ordinary Level Examination

C. Justice and truth and understanding

It is acknowledged that on all sides there are particular grievances arising from personal loss. Though the attribution of particular responsibility for such losses will not be easy, it is important to look into matters where there is already basic knowledge on which investigation can proceed. However it must be noted that this should not be done in any spirit of retribution.

It is vital that the government recognizes that many of those who engaged in acts of terrorism did so under compulsion, and whilst particular deeds may warrant investigation and judicial action, in general perpetrators should be given the benefit of the doubt. Conversely, whilst in a war situation excesses may have occurred, government should, whilst looking into cases where detailed evidence has been presented, avoid a witch hunt.

Equally importantly, it should set in place mechanisms to provide for ready redress, with regard both to the sufferings of the years of conflict, as well as for other problems that might arise.

To these ends;

*The government shall make every effort to give full effect to the Interim and Final Recommendations of the LLRC, so as to, maintain the confidence of the people in the reconciliation process.

*The government shall work comprehensively and cohesively to implement the National Action Plan on Human Rights that has been adopted by Cabinet, with particular attention to improving the capacities of and faith in the Police, to ensuring better protection mechanisms for women and children, and to streamlining the judicial system to promote confidence in its operations and a reduction of rote remanding.

* The state shall put in place mechanisms that facilitate the acknowledgement of losses and suffering on all sides, accompanied by expressions of empathy and solidarity. Examples of specific mechanisms include recording of all losses, with provision for the issuing of certificates and the bestowal of compensation as appropriate. Declaring that the process of reconciliation requires a full acknowledgement of the tragedy of the conflict and a collective act of contrition by the political leaders and civil society, of both Sinhala and Tamil communities, and that reconciliation can take root only if there is forgiveness and compassion, the government calls on leaders on all sides to reach out to each other in humility and make a joint declaration, extending an apology to innocent citizens who fell victim to the conflict. Additionally, the state makes a special call to the religious leaders of all communities and civil society to work towards reconciliation, bearing in mind the healing impact such interventions could have.

* Acknowledging the need for the nation to collectively empathize with all victims of the conflict, whether civilian or soldiers, or whether they belong to Sinhala, Tamil, Muslim or other communities, the state should set apart a separate event on Independence Day to express solidarity and empathy with all victims of the tragic conflict and to pledge a collective commitment to ensure that there is no return or relapse to such atrocities ever again.

* Recognizing that the ensuing minority grievances stem from deficiencies in the system of administration and lack of good governance that affect all citizens regardless of ethnicity, will ensure that every citizen who has a grievance out of any executive or administrative act, particularly those based on ethnicity or religion, should have the right to seek redress before an independent institution.

D. Implementation

* A multi-stakeholder institutional mechanism shall be established to promote and monitor the reconciliation process. The work of this mechanism shall be reviewed by a Parliamentary Select Committee. The mechanism shall cease to exist at the end of three years unless Parliament decides otherwise.

Concluded