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National policy and thinking to the fore - Part II:

Accountability not alien to local cultural values

Text of speech delivered by External Affairs Minister Prof G.L. Peiris at the 'National Conference on the Role of Education in Reconciliation' held at the Lakshman Kadirgamar Institute, Colombo on March 13.

President Mahinda Rajapaksa inaugurated that and he asked me to address that conference which was attended by leading Buddhist scholars from all over the world. I used that occasion to present to that learned audience the philosophy of accountability to be extracted from the Buddhist scriptures. The Sigalowada Suthraya, the Dammapadha the Parividdana Suthraya - all of this. And I spoke in the presence of some of the learned monks not only in this country but in Nepal, in Thailand, in Myanmar in Cambodia and other parts of Asia. So there is a certain ideology, certain conceptual underpinnings of accountability in this country and accountability is by no means an omission in the contents of the LLRC report.

Minister Prof G.L. Peiris

Even if you go back to the Roman concept set out in the Reqs of Illiya retribution, accountability meaning retribution that is the collective indignation the wrath of society. An eye for an eye, a tooth for a tooth. That is not in conformity of Eastern cultures, I don't mean just Buddhism, Hinduism, the Bhagvat Geetha the Islamic texts which I had the pleasure of discussing with some of the leaders of some of the countries of the gulf. But assume that we are sharply focused on the retributive aspect of accountability, it certainly an element not that it is by any means the solely exclusive element. But what has happened so far? We must remember that the LLRC of Sri Lanka was structurally very different from the Truth and Reconciliation Commission of South Africa. The Truth and Reconciliation Commission of South Africa had the power to administer oaths, so they received evidence given under oath. Our conception of the LLRC was completely different. So where there is prima facie evidence implicating anybody at all whether it be members of the armed forces ordinary civilians or whoever it is the LLRC report provides us with certain pointers, certain tentative indications now those have to be followed.

Criminal laws

I myself presided over a meeting which was attended by the Secretary of Defence, the Army Commander, the Attorney General, the rehabilitation authorities and we addressed this particular aspect of the matter in earnest. The Attorney General of the Republic was given the task of preparing dossiers to determine whether the institution of criminal proceedings was justified in particular instances. You are aware that under the criminal laws of this country and indeed the whole of South Asia- India Pakisthan- Singapore, Malaysia in all these countries there is only one person who can make decisions with regard to the instituting of proceedings and the withdrawal of proceedings - that is the Attorney General of the country. Now there must be an informed basis for the making of decision the Attorney General. Is there a prima facie case that would warrant judicial sitting? that task is very much in hand now, the AG who was present in Geneva as a member of the Lanka delegation and who had the opportunity to meet personally with other delegations attending the 19th sessions of the HRC, the AG was ready to explain to them in her own words what work she was doing in pursuance of this objective. So it was not something that was swept under the carpet it was not something that was forgotten it is something that is being pursued vigorously and energetically in accordance with the laws that govern criminal procedure in this country.

Government policy

The Attorney General is doing that and she has made a public statement to that effect. So has the Army Commander, who has established in keeping with government policy a court of inquiry which in the military regime is a precursor to a court marital. Now this is not saying that this is being done solely and exclusively by the military authorities, it being done under the laws of this country. If there is any miscarriage of justice, if there any failure on procedural fairness - the writ jurisdiction of the Court of Appeal is available. All this work is now going forward. Now this is with regard to accountability. I told you earlier that we are not obsessed on the retributive aspect although we consider it important and also significant to address the task of helping people to pick up the pieces move on with life, I mean that happens to all of us , it happens to countries, societies, families and individuals the painful period of one's life. And then the challenge is to leave the pain and then to organize your affairs in such a way that you can move forward. This cannot be done simply by hanging people there are other ways also that are required and that is why we are emphasizing the restitutional and compensatory aspect of the matter, where a family needs support, we are resorting to what is known as Affirmative action, in India it is known as affirmative action, in the US its known as reverse discrimination that is when it comes to let us say awarding scholarships to enable a child in difficult circumstances to pursue his education.

Harrowing experiences

We will take into account the harrowing experiences of him and his family because of the turbulence of the last couple of decades and we will give him special considerations in the awarding of scholarships. The same is to be applied to employment of the public sector. That is government policy and that was clearly enunciated in statements made by the government during the past. So all of this is happening it is not by any means forgotten. Then I ask you in all fairness to think about how difficult these tasks are, when the hostilities ended in May 2009 there were 297,000 who were displaced from this conflict we have now as I speak to you today, the government of President Rajapaksa has managed to resettle 97 percent of them and what enhances the quality of the achievement is that President Rajapaksa did not believe that resettlement was a physical process of providing a roof over some ones head but resettlement took place in an environment of economic content and well being with access to jobs and livelihoods.

The economy of the another part of the country is growing annually by 22 percent when the economy of the island as a whole is growing by eight percent, its not fortuitous nor is it gratuitous but it is as a result of deliberate policy and the emphasis on the development of infrastructure on the Nothern part of the country. So we have done all that. Now whether progress is sufficient or not is a relative matter, the large the problem the more challenging the issues naturally the longer the time you take to get to grips with them. If it's a simple problem you can say three days come on what is your solution?

As a very distinguished representative of a foreign government, I wont reveal what that government is, told me in Geneva "you know some of these people don't understand that this is not something like switching something on, this is not like that it takes time" now a very important official of the United Nations who was intimately connected with resolving issues in the former Yugoslavia and Cambodia told me "what your President and your government has done in two and half years took more than a decade to accomplish in those areas". So relativity is important, to return to the magnitude of the challenges I ask you whether any reasonable person can say that the progress that has been accomplished during this period is grossly inadequate.

So I told you about accountability in its retributive aspect and its restitutional and compensatory aspect. All of it has been fully catered for by the government of Sri Lanka. Now one of the most difficult issues dealt with in the LLRC report consists of the land issue. If you ask me, now this is my private opinion and not the governments opinion, if you ask me what is the most single issue contained in that report I would say that it is the land issue. Now be objective about it.

Ancestral property

With the advent of stability and peace not only in that part of the country but in the island as a whole the former owners are coming back. An important minister in an Asian country told me that his grandfather has ancestral property in Jaffna, so I told him you can now go and claim them; he said he has an ancestral house in Ward Place Colombo and also in the North. So I said your Excellency it certainly the time for you to go and enjoy your ancestral properties. Now as these people come back to claim there lands there is a conflict of claims because we are trying to resolve these issues after 30 years. Now how do we resolve these conflicts? There are no title deeds. In Mullathivu for example where the LTTE took its last stand all title deeds have been destroyed. So there's are no authentic source of title to which you can appeal in order to resolve contentious issues that arise in relation to ownership of immovable property. But apart from there is another problem.

Kachcheri system

Some people in possession the Maha Veer families are squatters in the eyes of the law but can you simply get hold them by the scruff of their necks and throw them out overnight, does that make sense? You cant do that because some of them have been in possession for 15 year or 18 years, not to mention the fact that in Sri Lanka's laws governing prescription ten years uninterrupted possession by persona independent of title confers ownership on him. Its no different to the paper title that you have. The title is complete. That is effectively the prescription ordinance in Sri Lanka. So what do you do? How do you resolve these issues? To the credit of the members of the LLRC they have done a lot of work on this issue and they have some up with some very viable practical proposals. Now the government has done three things with regard to that.

One is to authenticate, we now have to work on copies, properly authenticated copies of title deeds. Then secondly by having recourse to the Kachcheri system, that is one of the major recommendations of the LLRC - the Kachcheri system, that is to make equitable decision on the ground that is not with regard to ownership but at least temporary possession, who is entitled to a particular piece of land in this highly convoluted situation.

To be continued

 

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