THE

NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012

The table below examines each of the issues covered in the National Plan of Action to Implement the Recommendations of the Lessons Learnt and Reconciliation Commission (Action Plan) providing a summary of the proposed actions, responsible agencies, indicators, time frames and CPAs comments, concerns and questions. This table accompanies a commentary by CPA that highlights key concerns relating to the Action Plan and its implementation.
Summary of Activities Proposed in the Action Plan Key Responsible Agency, Key Comments, Concerns and Questions Performance Indicator & Time Frame proposed in the Action Plan 1. INVESTIGATIONS INTO ALLEGED VIOLATIONS OF IHL (1) Ministry of Defence (MoD) The role of the MoD and other government actors in processes Ministry of Justice. involving incidents implicating the military raises questions whether the processes suggested will be impartial and Complete on-going process 12 months independent. Offenders prosecuted - 24 months 1 The Army set up a Court of inquiry in January 2012 to inquire into such allegations but there are no public reports relating to progress made, if any. Given that the Action Plan states that the inquiry by the military is an ongoing process and that the courts started in January, is this action to be concluded in December 2012? The LLRC recommendations do not adequately address all allegations of violations of IHL. It is important for a reconciliation process to investigate all allegations through an independent (2) Attorney-Generals (AGs) process and make public its findings.

1. Complete on-going disciplinary process being conducted in terms of Armed Forces statutes and take follow up action to prosecute where relevant. In relation to; a. The specific allegations of attacks on civilians detailed in the LLRC. (LLRC 9.9 and 9.37a) b. The allegations of disappearances of persons after they surrendered/ were arrested and where such investigation produce evidence of any unlawful act on the part of individual members of the Army, prosecute and punish wrongdoers. (LLRC 9.23) 2. Use the existing system as provided for in

News.lk, Sri Lankan Military to investigation on LLRC recommendation, 16 February 2012, last accessed on 21 August 2012, (Available at http://www.news.lk/news/sri-lanka/1489-sri-lankan-military-to-investigation-on-llrc-recommendation).

THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 the Criminal Procedure Code to originate a complaint and give such mechanism sufficient publicity. Department. Cases filed in court - 24 Months The absence of an effective Victim and Witness protection legislation has been a long standing obstacle to conduct effective 2 investigations. In the absence of such legislation it is unlikely that victims would use the procedure set out in the Code of Criminal Procedure to originate complaints. Even if a complaint is made, concerns remain as to whether witnesses would come 3 forward to testify and reprisals they may face in doing so. MoD & Presidential Secretariat. The MoD, Army and others have on several occasions denied the authenticity of the Channel 4 video and the allegations made in 4 Assessment completed, it. A video was made by the Government to counter allegations 5 Follow up action identified and pursued, in the Channel 4 video. In such a context, questions are raised as appropriate - 6 months whether the MoD and other Government actors can conduct an assessment which is independent. Department of Census & Statistics Such an exercise can be constructive in assessing the impact of (Presidential Secretariat to oversee) the conflict but should be done through a process which is transparent. Furthermore the public should be made aware of Mechanism launched to conduct survey this process. ongoing

3. Assess the inquiry currently conducted by the Army to examine the authenticity of the allegations in Channel 4 video and take follow up action as appropriate. (LLRC 9.39)

4. Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first hand the scale and circumstances of death and injury to civilians, as well as damage to property during the period of the conflict. (LLRC 9.37b) 5. Implement recommendations of past Commissions of Inquiry (CoI), particularly those

AGs Department, Department of Police

No time frame has been given to implement and complete the activities, other than to suggest it is on-going.

International Independent Group of Eminent Persons (IIGEP), The Final Report of the IIGEP, 15 April 2008, (Available at http://www.ruleoflawsrilanka.org/resources/IIGEPnbspSTM.pdf).
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See also The National Action Plan for the Protection and Promotion of Human Rights 2011- 2016 (NHRAP), P. 19.

Sri Lanka Army, Defence Ministry, Experts Review Unaltered Video Probe Launched: Fresh Probe Launched, 4 July 2011, last accessed on 21 August 2012, (Available at http://www.army.lk/detailed.php?NewsId=3465).
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Lies Agreed Upon, Ministry of Defence Sri Lanka, last accessed on 21 August 2012, (Available at http://www.defence.lk/new.asp?fname=20110801_LAUvdo).

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Centre for Policy Alternatives August 2012 relating to further investigation and prosecution of offenders involved in the death of (LLRC 9.120) a) 5 students in Trincomalee in January 2006 b) 17 aid workers of the ACF in August 2006 Recommendations implemented ongoing Information should be publicly available regarding the progress made so far. The findings/ recommendations of the past CoIs should be made public. This is essential to monitor whether the recommendations are being fully implemented. Regardless of the recommendations of the said CoI, it is essential that investigations in the above cases are concluded and the perpetrators brought to justice.

2. MISSING PERSONS, ABDUCTIONS, INVOLUNTARY/ENFORCED DISAPPEARANCES 1. Identify impediments, if any, to the effective (1) MoD / Police Department. In light of the seriousness of the violations and the allegations of enforcement of the law. That the offences of State involvement in some of these violations, concerns are abductions, enforced / involuntary Impediments identified and remedial raised whether the Government actors identified can conduct disappearances and arbitrary detention are action taken 6 months. independent and effective investigations. visited with serious sanctions. (LLRC 9.48) Improved police training modules 12 Independent actors with expertise in this area should be brought 2. Strengthen investigation skills of Police. (LLRC months. in including civil society and community level actors. 9.48) (2) Legal Aid Commission, CBOs, The modalities of the community-based policing programme are Ministry of Justice, Police Department. not specified. However, the Action Plan does specify that action 3. Strengthen access to justice. (LLRC 9.48) will be taken through the Civil Defence Committee programme Access to justice programmes identified of the Police in other areas where community policing has been 4. Enhance the capacity of the Police to put in 6 and implemented by establishing suggested. place a more effective surveillance mechanism community policing units - 12 months. of the locality in cooperation with the local community and establish community policing. (LLRC 9.48) 5. Invoke the present procedures as available in Police, AGs Department, Ministry of The LLRC recommended the establishment of a Special the Code of Criminal Procedures with priority Justice, Information and Communication Commissioner of Investigations to investigate alleged

See (below) Activity 9, Promoting Communal Harmony and Development.

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Centre for Policy Alternatives August 2012 given to complaints pertaining to alleged disappearances. (LLRC 9.51) 6. Sensitize the public with regard to availability of the various mechanisms through the Government Information Centre (GIC) (1919) and enhance the capacity of the present GIC to entertain the receipt of information. (LLRC 9.51) Technology Agency (ICTA) The launching of appropriate mechanisms to inform the public of the present facilities via the media 3 months disappearances and provide material to the AG to initiate criminal proceedings (LLRC 9.51). However this has not been included in the Action Plan. The activity fails to fully appreciate the complexity and seriousness of the issue of disappearances and thereby identifies activities to improve procedures rather than address the root causes of the problem and practical difficulties faced by those affected. The absence of an effective Victim and Witness protection legislation has been a long standing obstacle to conduct effective 7 investigations. In the absence of such legislation it is unlikely that victims would use the procedure set out in the Code of Criminal Procedure to originate complaints. Even if a complaint is made, concerns remain as to whether witnesses would come 8 forward to testify and reprisals they may face in doing so. The suggestion that members of the public, especially next of kin, being able to access information on missing individuals, does not acknowledge the full nature of the problem. It is not merely an issue of capacity and lack of awareness in terms of the public as to which government institution/s to go to but it is also the lack of accessibility, transparency and cooperation on the part of state actors. Several of the actors identified in the Action Plan are perceived as political appointees, thereby raising questions of independence. This is aggravated by the AGs department being under the purview of the Executive and the AG being appointed

International Independent Group of Eminent Persons (IIGEP), The Final Report of the IIGEP, 15 April 2008, (Available at http://www.ruleoflawsrilanka.org/resources/IIGEPnbspSTM.pdf).
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See also The National Action Plan for the Protection and Promotion of Human Rights (NHRAP), P. 19.

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Centre for Policy Alternatives August 2012 by the Executive. This is further exacerbated by the lack of a National Police Commission that is independent and the politicisation of the Police. This should be the responsibility of the civilian administration with no role played by the defence authorities. Such a process should be transparent and information provided regarding process and how the data collected will be used. Family members should be able to check the information and efforts should be made by the State to act on the information including informing the next of kin of the status of the case, including if the individual is in government custody. Tracing should not be limited to child conscripts alone but should be expanded to include other case loads of missing children and 9 missing adults.

7. Establish an integrated data base to collate information regarding missing persons. (LLRC 9.51)

Dept of Census & Statistics, MoD Data base established and information included 6 months

8. Consider establishing a national, Government led, multidisciplinary task force to develop and implement a comprehensive child-tracing program. (LLRC 9.81) 9. Examine the need for legislation to specifically criminalize enforced or involuntary disappearances, formulate and present law to Parliament, if law reform is found to be necessary with emphasis on the need to impose heavy terms of imprisonment as a deterrent. (LLRC 9.59)

Child conscripts identified, rehabilitated and re-integrated. No Key Responsible Agency or Time Frame identified. Ministry of Justice, AGs Department, Police Department Review of laws completed, Legislation drafted and presented to Parliament, if found necessary 24 months.

While this is a positive step forward, there needs to be recognition that introducing legislation alone will not halt the occurrence of disappearances. There needs to be recognition from the Government that it is a structural problem requiring steps being taken to conduct independent investigations and holding perpetrators to account. Drafting of legislation should be done through a participatory and transparent process with sufficient time to provide for comments by the public. Time and space for debating the bill should be provided, hence it should be made public as soon as it is drafted for amendments and legal challenge if need be.

See (below) Activity 6, Demobilization, Disarmament and Reintegration/ Law and Order.

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Centre for Policy Alternatives August 2012 The legal and policy framework addressing this issue should adhere to the international standards and practices. There should be wide publicity in Sinhala and Tamil using all forms of media to raise awareness of the framework and assistance available. Local government officials should be trained to provide answers to the public regarding the process. Clarification is needed as to any implications of next of kin obtaining a death certificate for someone who has been disappeared or is missing.

10. Review of progress of implementation of the Registration of Deaths Act in terms of instructions already issued. Give adequate publicity of the availability of information through the Governments 1919 facility, to people in conflict affected areas (LLRC 9.52)

Ministry of Public Administration & Home Affairs Instructions issued to implement the provisions of new legislation ongoing

3. DETAINEESAND REHABILITEES 1. Disparity between Recommendation and Action: The cited LLRC recommendation (LLRC 9.57) calls for the appointment of an Independent Advisory Committee to monitor and examine detention and arrest of persons taken into custody under any regulations made under the Public Security Ordinance or the Prevention of Terrorism Act. The Action Plan refers back to activities 1, 2, 3 and 4 of Section 1 (Investigations in to alleged violations of IHL) Ministry of Public Administration & Home Affairs No Time Frame There is a disparity between the recommendation and the suggested activity as the latter does not call for the appointment of the recommended committee. The suggested activity refers back to activity 1, 2, 3 and 4 in the section dealing with Investigations into alleged violations of IHL. These are activities specific to IHL and are meant to be undertaken by the military and MoD. However, in the present instance the Action Plan designates the Ministry of Public Administration & Home Affairs as the key responsible agency. It is unclear how the suggested activity will achieve the objective of the LLRC recommendation. Activities 2, 3 and 4 of this section are positive measures. The time frame for Activity 2 is problematic especially for individuals who have been held in detention for a number of years already. However, it is noted that Activities 3 and 4 are

2. Identify and establish procedures in the existing system to address the issue of persons being held in detention for long periods without charges, complete decision making regarding

AGs Department Processes identified and established

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Centre for Policy Alternatives August 2012 detainees through a dedicated unit in the AGs Department mandated to examine detention cases. (LLRC 9.57) 3. Formulate a programme to divert suspects from the criminal process to voluntary rehabilitation in appropriate cases. (LLRC 9.63) 4. Enable indictments to be filed in an additional number of courts to ease the backlog. (LLRC 9.63) 5. The present database containing a list of detainees to be enhanced with easy access to information being available to next of kin. (LLRC 9.63) and reduction in the number of detainees 24 months. to be completed by the end of 2012. In May 2012 the government promised to set up a special unit in order to process the back log of case in relation to detainees 10 within one month and to also set up four special high courts in order to hear cases against those accused of being former LTTE 11 combatants. The status of initiatives proposed previously and their connection, if any, with those proposed activities in the Action Plan is unclear.

Police Department & AGs Department Report to be published - End 2012 Ministry of Justice Report to be published - End 2012 MoD Enhanced database 6 months

6. Continue current practice of informing next of kin regarding location of detainee and also inform the National Human Rights Commission

Police Department A comprehensive list of names and

Although several statements have been made by the Government to indicate that families will have access to such information, problems continue in obtaining information. In addition, there needs to be clarity in how information from the database can be obtained, especially in light of the present difficulties. There needs to be clarity as to whether friends, relatives and legal representatives of missing persons would have access to this data base. Reports indicate that this is not a uniform practice and should be adhered to in all cases.

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The Nation, Lanka denies holding any Tamil political prisoners, 24 May 2012, last accessed on 21 August 2012, (Available at http://www.nation.lk/edition/breaking-news/item/6374-lanka-denies-holding-any-tamil-%C3%A2%E2%82%AC%CB%9Cpolitical- prisoners%C3%A2%E2%82%AC%E2%84%A2.html); Maryam Azwer, North And East Are Historic Habitation Of Tamil Speaking People - M. A. Sumanthiran The Sunday Leader, 3 June 2012.
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News Line, Special courts to be established to hear cases against LTTE suspects, 24 May 2012, last accessed on 21 August 2012, (Available at http://www.priu.gov.lk/news_update/Current_Affairs/ca201205/20120524special_courts_be_established.htm).

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Centre for Policy Alternatives August 2012 of Sri Lanka (NHRC). (LLRC 9.63) 7. Examine and report on the practical application and the feasibility of a procedure to issue a certificate when a person is discharged (so that the same person is not taken into custody again, unless new evidence is discovered against him). (LLRC 9.63) 8. Review the status of the remainder of the detainees with a view to assessing whether special attention to certain groups or individuals is needed. (LLRC 9.68, 9.69, 9.78 & 9.82) relevant data available to the next of kin on-going AGs Department Report published - End 2012

This could be a positive step if properly implemented and adhered to.

Commissioner General of Rehabilitation Status required to be submitted 3 months

This activity should be done in collaboration with the AG Department as it has already been tasked with a similar activity (Activity 2 in Section 3 Detainees and Rehabilitees). There should be consultation with lawyers and civil society groups working on this issue.

4. DEMOBILIZATION, DISARMAMENT AND REINTEGRATION/ LAW AND ORDER 1. Examine crime statistics and trends to identify MoD / Police Department. The lead should be taken by the Police and involve other actors critical issues to ensure the maintenance of law including AGs Department and the NHRC. and order and take necessary measures to Effective vigilance and decreased in improve law enforcement. (LLRC 9.204) incidents of crime on-going Information should be made public. 2. Ensure strict enforcement of the provisions of Police Department This is a welcome move and should be implemented fully with the Offensive Weapons Act/The Firearms and the involvement of the AGs department. Questions arise as to Explosives Act and the successful prosecution of Disarming all persons in possession of whether such a task can be completed during the identified time legal action against offenders. (LLRC 9.204) unauthorized weapons 6 month period and therefore consideration should be given to an extension in consultation with the necessary stakeholders. The AGs department should indict and prosecute all offenders, regardless of background and political connections. Even while the Action Plan claims all illegal armed groups are no longer operative, there has been no public information regarding the disbanding of these groups and the demobilisation and

THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 disarmament of the members of these groups. Doing so would ensure the implementation of the LLRC recommendation calling for the disarming of illegal armed groups as per LLRC Interim and Final Recommendation. (LLRC 9.74) Unclear what is to be achieved during 6 months. Whether it provides only for investigations to be conducted or whether prosecutions can also take place within 6 months. There should also be action taken with other crimes across Sri Lanka including in the South where politicians affiliated with the ruling party are involved. A welcome step and should be implemented immediately.

3. Conduct investigations (including allegations related to Bhareti, Karuna, EPDP extortion, and a gang led by a person called Major Seelan) speedily and ensure that the Rule of Law prevails having due regard to the guarantee of the equal protection of the law. (LLRC 9.213) 4. Set up units of the AGs Department in the Provinces and formulate Terms of Reference (ToRs) for them to guide and advise the police regarding criminal investigations, prosecutions and other matters touching upon the criminal justice system. (LLRC 9.212) 5. Include relevant modules in the training programmes for Police Officers and enhance capacity of the Trainers of the Police Training College. (LLRC 9.212)

Police Department, AGs Department, Ministry of Justice Increased rate of successful prosecutions 6 months.

AGs Department Enhanced capacity of AGs department units 12 months Police Department Improvement in the quality of investigations and greater success in prosecution and a general improvement in the criminal justice system No Time Frame Investigations completed. No Key Responsible Agency identified

A welcome action but more information needs to be provided with steps that are proposed including time frame.

6. Investigate instances where there is prima facie evidence of conscription of children as combatants and ensure that offenders are brought to justice. (LLRC 9.79)

Although this activity is listed as having been completed, there is no information publicly available on the status of prosecutions and any offenders who have been brought to justice. This information should be publicly available. 12 There is also no mention of any follow up action, if any.

12

See (above) Activity 8, Missing, Abductions, Involuntary/Enforced Disappearances.

THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 5. DEMILITARISATION 1. Formulate Plan for further reducing involvement of Security Forces in civilian work. (95% already withdrawn from civilian duties) having regard to the experiences of the reconciliation programmes. (LLRC 9.171 and 9.227) 2. Identify and remove impediments, if any, that hinder normal civil administration and review progress at the monthly Government Agents (GAs) conference conducted by the Ministry of Public Administration. (LLRC 9.195) 3. Consequent to the review of the 2 existing HSZs in Pallali and Trincomalee -Sampur, as well as small extents of private land currently utilized for security purposes being completed (LLRC 9.142) a) Release lands where possible; b) Take steps to re-locate or to pay compensation under applicable Statutes (Land Acquisition Act). MoD A marked reduction or withdrawal of security force personnel from civil activities 6 months This is essential for reconciliation but also for restoration of normalcy. Questions though remain on how the figure (95%) was calculated?

Ministry of Public Administration & Home Affairs All impediments, if any removed and normal civil administration restored 12 months MoD Lands released on-going Ministry of Lands Re-location completed 6 months Compensation paid 3 years

Broad scope of impediments can be reviewed under this recommendation but given overlap with recommendation above, there is a lack of clarity as to how these two processes will function in parallel.

Provide answers on the legal basis for the occupation as there is no legal framework justifying the presence of HSZs in Sri Lanka. The Government should provide a list of all occupation by the military. Even though the LLRC recommendation does not refer to public land the Government should provide a plan for a phased withdrawal from civilian and public properties. In exceptional circumstances the Government should acquire such properties for the use of the security forces and in the case of private properties provide due compensation. Military occupation should be an exception and not the norm.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 6. INDEPENDENT INSTITUTIONS 1. Independent police commission. (LLRC 9.215) A National Police Commission has already been established Concerns are raised whether any of the so called independent institutions are in effect independent due to the provisions of 13 the Eighteenth Amendment to the Constitution. The Action Plan does not refer to other recommendations and suggestions such as the police commissions role in promotions (LLRC 9.215) and also disciplinary action against police officers in cases of torture. The recommendations relating to de linking the Police from the 14 MoD is referred to above. This is an important recommendation but questions remain whether implementation can be effective. Whilst strengthening already existing mechanisms is welcome, because of the lack of clarity as to which mechanisms will be reviewed and whether follow up action will take place, concerns remain over whether important institutions such as the NHRC will be overlooked or whether the recommendations made to the Cabinet will be implemented. Concerns are raised whether any of the so called independent institutions are in effect independent due to the provisions of 15 the Eighteenth Amendment to the Constitution. In principle a positive action but more information required as to what this entails and whether the action can be completed

2. Reviews provisions of existing institutions to address citizens grievances and to identify and introduce additional and more effective measures, mechanisms and amendments to laws to strengthen citizen grievance mechanisms. (LLRC 9.218 and 9.219)

Presidential Secretariat, MoD, AGs Department, Ministry of Justice Report submitted by major stakeholders to the Cabinet of Ministers 6 months

3. Independent Public Service Commission to be established to ensure equality for all and avoid political interference. (LLRC 9.226) 4. Implement the National Human Resources Policy to bring about attitudinal change through

Completed.

Office of the Senior Minister for HR development.

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13 14

See Rohan Edrisinha and Aruni Jayakody (eds), The 18 Amendment to the Constitution: Substance and Process, CPA, 2011. See (below) Activity 3, Issues to be dealt with by the proposed PSC. Supra n. 13.

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Centre for Policy Alternatives August 2012 training programs to enhance the work ethic of the public service. (LLRC 9.224) Human Resources Plan of Action formulated and implementation commenced 3 months within three months.

7. RESETTLEMENT OF INTERNALLY DISPLACED PERSONS (IDPS), REFUGEES& OTHER CONFLICT AFFECTED 1. Disparity between Recommendation and As contained in the NHRAP on-going There is a disparity between the recommendation and the Action: While the cited LLRC Recommendation action, including that in the NHRAP there is no reference of an (LLRC 9.92) calls for the establishment of an Inter-Agency Task Force, instead it calls for a National Policy on Inter-Agency Task Force mandated to address in Displacement. a comprehensive manner the needs of women, children, elderly and other vulnerable groups There has been little public information to the public on the such as disabled affected by conflict, and provide implementation of the NHRAP which was approved by the necessary relief, the action is to implement the Cabinet in September 2011 apart from the appointment of a activities in the National Human Rights Action Cabinet Sub-Committee to monitor the implementation of the Plan (NHRAP). NHRAP in February 2012. No reference in the Action Plan as to who will take the lead in this activity and how long it would take to complete the task. Since the activity is listed as ongoing, information on progress made so far should be shared with the public on a regular basis. Who is to decide what should be classified as necessary relief? The LLRC recommended that livelihood assistance should be provided for IDPs who have been resettled and are in the process of rebuilding their lives as it is still necessary to pay attention to their continuing needs. (LLRC 9.101 9.103 and 9.143). The need for action on livelihoods, housing and assistance for vulnerable groups among the displaced is highlighted in the NHRAP. 2. Grant ownership of land to IDPs under Land Ministry of Lands While there is an urgent need to address the land rights of IDPs Circular No. 2011/4 of 22.07.2011 and create the measures suggested by the Action Plan pertain to

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Centre for Policy Alternatives August 2012 awareness among IDPs about policies (with regard to the areas that are available for people to resettle) and the options available to them. (LLRC 9.104 and 9.106) 3.Two separate Action Points calling for the formulation of a policy on the issue of Muslim IDPs(displaced from the Northern Province) and implementing the policy. (LLRC 9.113 and 9 .195). Circular implemented ongoing Awareness programmes conducted 6 months In one action point the Presidential Task Force for the North and East (PTF for the N&E) is to formulate and implement a policy in a 9 month time span but in another action point the Ministry of Resettlement and the PTF for N&E is to publish the report identifying the requirements with recommendations for the resettlement and reintegration of the displaced Muslims in 18 months. implementing the Land Circular which was withdrawn by the Government in January 2012 as a result of a case filed 16 challenging the circular. Duplication of an action point and two different time lines for one general action of devising a policy and implementing it. It is extremely important to devise solutions to facilitate Northern Muslim return and reintegration and the time frame of 18 months suggests that there is recognition that the issue is complex and quick fix approach is not the answer. While considering solutions, it is also important to consider the following issues- Return, rehabilitation and reintegration of all displaced? Would IDPs, host communities and groups working with these groups be consulted in the process? Why is the PTF involved in this activity, especially since there is no public information on its ToR or as to how long it will continue to function? The formulation of policy should also involve non-governmental actors who have been involved in supporting refugees in India and representatives of affected communities. There is confusion in the terminology used as the Action Plan calls for action with regards to IDPs in India (i.e. refugees).

4. Formulate policy with regard to refugees in India (LLRC 9.108) 5. Conduct bi-lateral discussions with India in terms of policy (LLRC 9.108)

Ministry of Lands, Ministry of External Affairs (MEA), Ministry of Resettlement, MoD MEA, MoD Bi-lateral discussions held and decisions implemented 24 months

16

See (below) Activity 5, Issues Relating to Land.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 8. ISSUES RELATING TO LAND Ministry of Land A study on the alienation of state land is necessary in the post- war context but a number of questions arise including - Does the Ministry of Lands have the capacity to conduct such a A completed study of the alienation of study? state land with specific reference to the Will civil society, communities and others with expertise be Northern and Eastern Province 12 involved in this process? months It is also unclear which policy is being referred to in terms of land use, and if it is the Land Use Policy developed in 2007 (see below). Policy formulation should be conducted in a transparent and participatory manner, providing as much information as possible to the public on process and outcome. Ministry of Finance and Ministry of Should be welcomed and the involvement of civil society and Public Administration others at the district level should be included. Budgetary provisions made available to and staff provided to Ministry of Ministry of Land Land Use Plan for Northern and Eastern Provinces developedLands 36 months 4. Ensure effective implementation of statutes, i.e. The State Lands Ordinance, Land Development Ordinance (LDO), Land Grants (Sp. Provisions) Act. (LLRC 9.124) PTF for the N&E Why is the PTF to play a role in this process, especially in light of concerns raised regarding the lack of information on its ToR and duration of operation? While welcoming effective implementation of statues, due attention should be given to amending particular sections of existing legislation including LDO and Prescription Ordinance. This should be conducted by the Ministry of Land in collaboration with the Ministry of Justice and Legal Draftsmans Office.

1. Conduct a study to ascertain whether practices infringe on the legal right of any citizen of Sri Lanka to acquire land in any part of the country and take appropriate steps to remove infringements (if any exist) (LLRC 9.124) 2. Effective implementation of the policy on land use with a view to identifying appropriate state land available for settlement. (LLRC 9.124) 3. Provide Ministry of Lands with resources to prepare the Land Use Plan for North and East. Acting under the Land Use Policy adopted in 2007, develop Land Use Plan for the North and East. (LLRC 9.151)

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Centre for Policy Alternatives August 2012 5. Carry out awareness programme and implement circular No 2011/4 of 22.07.2011 Ministry of Land 6 months for The Land Circular was withdrawn by the Government in January awareness raising and implementation is 2012 as a result of a case filed challenging it. In July 2012, the on-going. Government confirmed this undertaking to court. Therefore questions are raised as to how this activity is being implemented when the circular has been withdrawn. The Action Plan makes reference to implementing the Circular in multiple action points and in one of these states that the time frame for implementation being 3 months. (9.140) Since the implementation is listed as o-ngoing, information should be shared on the status of progress made, if any. Ministry of Land Unclear whether this is in reference to the Land Circular pertaining to the North and East which was withdrawn. If so, the continued reference to a circular which has been withdrawn is Implementation of circular 3 months problematic.

6. Ensure implementation of provisions of the Circular of the Ministry of Lands which apply strict controls to prevent any alienation of State land other than for IDPs until the proposed Programme is implemented. (LLRC 9.140) 7. Evaluate the need for an external partner to support the programme and formulate a project proposal if external resources are found to be needed. Secure assistance as appropriate, if feasible. (LLRC 9.141)

Ministry of Lands, Ministry of Resettlement, Department of National Planning

A report dealing with activities 3 months th 8. Appoint a 4 Land Commission with Terms of Ministry of Land reference similar to the previous three (i.e. 1927, 1936 and 1985) to recommend policy to address Appoint Land Commission 24 months issues. (LLRC 9.124)

Unclear whether the programme mentioned is that of the Land Circular. If this is the case, development partners and others should be aware that the matter is before court and there is an undertaking given in court to withdraw the circular

Why appoint a 4 Land Commission when the first step should th be to establish the NLC as provided in the 13 Amendment? The Action Plan suggests the establishment of the NLC should be 17 taken up by the PSC. Make public the ToRs of the previous Land Commissions. The process of policy formulation should be transparent and

th

17

See (below) Activity 2, Issues To be Dealt with by the proposed Parliamentary Select Committee.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 participatory. This section seems to indicate that the Land Circular challenged in court and subsequently withdrawn is to be implemented. This is problematic as there was an undertaking given by the State that the said circular will be withdrawn. This undertaking was given in January 2012 and the undertaking was reinforced by the AGs Department in July 2012. CPA recognizes that a programme addressing land issues is needed in the post war context but should be done adhering to national and international laws. The recommendations provided in the Action Plan are largely positive, including restricting the militarys role in the process to the release of land it is currently utilizing, and should be included 18 in a new circular. th It is also not clear the exact purpose of the 4 Land Commission examining the feasibility of these recommendations, if the circular is to be implemented in parallel.

9. The proposed 4 Land Commission to consider the feasibility of implementing the following recommendations which were proposed to ensure that the land policy and the associated Programme proposed in July 2011 is effectively implemented; 9.126 - Assure people through a publicity effort that the Programme seeks to make available land to all returning IDPs as expeditiously as possible and is not a substitute for recourse to the Courts of Law where people are in possession of valid legal proof of their claim to the land in question 9.128 - Provide the needed human and financial resources 9.129 - Supervise civil administration officers tasked with the implementation of the Programme by respective Government Agents and monitor implementation quality at the national level by the Land Commissioner General 9.131 - Organize a well-planned media seminar on the Programme to enable the Media to project an accurate and clear view of the Programme 9.132
18

th

Ministry of Land Implementation of the activities in th keeping with the findings of the 4 Land Commission 24 months.

- Conduct

well

designed

training

See A Commentary on New Government Land Policy Initiatives, B. Fonseka and M. Raheem, Land In the Northern Province; Post war Politics, Policy and Practices, CPA, December 2011.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 programmes for all officers and community leaders selected for various Committees 9.133 - Launch a well-designed, communication campaign in simple Tamil and Sinhala language to help displaced persons come forward to benefit from the Programme 9.134 - Confine the participation of security forces officers to expediting the release of maximum extents of lands being utilized for security purposes 9.135, 136 - Organize and hold a well-publicized Community Consultation Meeting in each District Secretariat area prior to the launch of the First Committee investigation process. Establish a mechanism to rapidly consider constructive suggestions made through this process 10. Formulate a policy to deal with the issue of settlements. (LLRC 9.124)

Ministry of Land Policy formulated- 12 months

A policy on settlements is welcome but should be drafted in consultation and collaboration with civil society and others with expertise on land and return issues. The policy should reiterate that private lands will not be used for government settlement schemes.

1. Examine the issues that affect the effective implementation of the REPIA (Rehabilitation Of Persons, Properties And Industries Authority) and take appropriate action to deal with issues identified. (LLRC 9.155)

9. RESTITUTION AND COMPENSATION Ministry of Rehabilitation and Prisons The recommendation is welcome. The Action Plan states that the Reforms activities are on-going. The Government should make the report Report on REPIA received action taken and on-going activities public and include all stakeholders and issues resolved ongoing including civil society in such process.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 2. Provide funds for payment of compensation based on an acceptable victim identification process. (LLRC 9.155) Ministry of Finance and Planning ongoing The recommendation is welcome. The Action Plan states that the activities are on-going. Information should be also made publicly available as to the criteria to be used for the process and for what disasters and problems compensation will be provided for. The process of drawing up criteria should also be made more consultative. The Government should engage in a wider process for review of disaster relief.

3. Examine government policy to identify what disqualifications exist for public servants when accessing assistance provided by Non Governmental Organizations (NGOs) and determine and introduce provisions to ensure equitable assistance. (LLRC 9.162) 4. Disparity between Recommendation and Action: The Action Plan calls for a continuation with Government programme for the rehabilitation and re-integration of ex- combatants and a reconciliation programme for the next of kin, while the cited LLRC recommendation calls for compensation for death and injury of those involved with the LTTE. (LLRC 9.164)

Ministry of Public Administration Policy examined and problem areas identified (if any) new policy determined, if necessary 3 months Ministry of Resettlement, PTF N & E The effective implementation of the relief programmes granting relief to those next of kin affected by death or injury as a direct result of the conflict 24 months 10. LANGUAGE ISSUES Ministry of National Languages and Social Integration, Presidential Task Force on Trilingual Society

While the LLRC recommendation is specific to those who were involved with the LLTE, the activity proposed in the Action Plan appears to be much broader. There needs to be clarity as to whether this compensation is 19 available to all victims, including combatants.

1. Formulate an Action Plan to ensure effective implementation of the Language policy. (LLRC 9.245 9.247, 9.249) 2. Examine the role of the Official Languages

Programme of Ministry pre-dates the LLRC. Timeline not provided but noted as an on-going activity. Given that the Interim Recommendations included suggestions

19

See (above) Demobilization, Disarmament and Reintegration/ Law and Order.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 Commission and identify areas that need strengthening. Include remedial steps to be taken, in the Action Plan. (LLRC 9.248) 3. Implement recommendations of the Presidential Task Force on Trilingual Society by 2020. (LLRC 9.245 9.247, 9.249) 4. Design a monitoring and evaluation plan to assess whether the programmes implemented are effective and whether there is compliance with policy. (LLRC 9.245 9.247, 9.249) 5. Monitor observance of language rights recognized in the Constitution and identify additional remedial measures required to ensure observance of language rightsand suggest remedial measures. (LLRC 9.245 9.247, 9.249, 9.250) Ministry of National Languages and Social Integration Monitoring activity completed 12 months Additional remedial measures identified and implemented 24 months 11. FREEDOM OF SPEECH, ASSOCIATION AND ASSEMBLY, AND MOVEMENT Effective Monitoring of the implementation of the Trilingual Initiative on-going on language issues, including the need to have interpreters in police stations it would be useful for the Government to provide a progress report on how far these recommendations have been implemented. There is an overlap with the NHRAP which includes similar 20 activities with a one year time frame. Question of citizen participation is ignored and community level 21 Implementation. (LLRC 9.241) In addition it is important the Government documents including circulars, gazettes, regulations and notices should be translated 22 into Sinhala and Tamil. This activity could be included with recommendation 9.250.

20 21

See NHRAP p 23, 29 and 42.

See also Bhavani Fonseka, Luwie Ganeshathasan and Mirak Raheem, Short Term Benchmarks for Peace and Reconciliation in Post- War Sri Lanka (Short Term Benchmarks), CPA, 30 May 2012, Recommendation 10.g.
22

See Short Term Benchmarks, Recommendation 10.d.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 Ministry of Mass Media & Information Effective redress to grievances of media personnel 12 months

1. Take appropriate action to ensure media freedom (LLRC 9.115 a c); (a) Pursuit of grievance mechanisms - Complaints to Police, FR Applications to SC, Complaints to Press Council (with a wider jurisdiction and enhanced powers) (b) Complaints to NPC against Police inaction. 2. Complete investigations into current cases (LLRC 9.115 a c)

Police Department Investigations completed No Time Frame given. Press Council No Time Frame given.

There have been several cases where investigations into attacks on journalists and media institutions, assassinations and disappearances of journalists have not resulted in the perpetrators being arrested and prosecuted. Most of these investigations have been on-going for several years. The LLRC recommended that investigations should be expeditiously concluded so that offenders are brought to book without delay and the imposition of deterrent punishment for such offences so as to build the public confidence in the system of justice. However the Action Plan does not recommend any specific action to achieve these recommendations. The absence of an independent police commission and the politicisation of the police. This is an action that has no corresponding recommendation in the LLRC Final Report. Concern that the activity relating to promoting responsible journalism may lead to state control over free media. Positive measure but lack of clarity if this is for both national and international media. If any impediments remain after the period of 6 months, these should be made public with reasons given as to why such impediments remain.

3. No corresponding LLRC Recommendation Promote responsible journalism and consider a code of conduct for journalists.

4. Identify impediments to free movement of media personnel in the North and East and take appropriate action to remove impediments (if any) (LLRC 9.115 d)

5. Enact legislation to ensure the right to information (LLRC 9.115 e)

Ministry of Mass Media and Information, Police Department Impediments identified (if any) and all impediments, if any, removed 6 months Ministry of Mass Media and Information Cabinet of Ministers to decide the suitable time frame for drafting legislation to be confirmed

It should be noted that the draft legislation on right to information has been discussed since 2003 with repeated promises on the part of the Government to enact such legislation. However the Action Plan does not disclose any time frame for the enactment of this legislation.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 6. Identify and remove any remaining restrictions on visiting places of worship (LLRC 9.117) 7. Monitor monthly at Government Agents conference, whether there are constraints to the freedom of people, community leaders, and religious leaders organizing peaceful events and meetings (LLRC 9.118) 8. Identify whether there are undue restrictions to visitors from overseas to visit their friends and relatives in recently resettled areas and remove such restrictions (LLRC 9.119) Ministry of Religious Affairs A positive measure. Restrictions if any, removed 12 months Ministry of Public Administration Main indicator - zero complaints re inability to organize events on-going MoD, Police Department, respective GAs The formulation of a report which confirms that no such restriction exists 6 months MoD Unnecessary impediments (if any) removed 2 months The Government should have an open forum at the district level where stakeholders can raise any problems on a regular basis.

9. Identify and remove unnecessary obstacles that impede free movement on the A9 (if any) (LLRC 9.195)

This activity should be driven by the civil administration and the report made public. There is a need to also look at restrictions faced by citizens in general. The KPI prejudges the outcome of the report. What steps will be taken in instances where the security forces maybe the source of some of these obstacles? As the LLRC notes the problem of freedom of movement is a broader issue not just related to the A9. (LLRC 9.116)

12. ISSUES TO BE DEALT WITH BY THE PROPOSED PARLIAMENTARY SELECT COMMITTEE 1. To develop a consensus on devolution with all Presidential Secretariat The issue of devising a consensus on the political solution is a political parties and those representing complex challenge. The PSC that was proposed by the minorities in particular. (LLRC 9.236 and 9.237) Refer to PSC Government has not yet been constituted and key political parties have yet to agree to submit nominees with the TNA in Time frame N/A particular objecting to the PSC by-passing the Government-TNA talks. 2. Provide recommendations for establishing a Presidential Secretariat, Ministry of Why should this issue be forwarded to the proposed PSC? The National Land Commission (NLC). (LLRC 9.150) Lands NLC as provided in the Thirteenth Amendment to the Constitution should be and can be immediately constituted

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 Proposal included in ToR of PSC- Time Frame To be confirmed Presidential Secretariat Recommendation referred to PSC. on- going Recommendation referred to proposed PSC Time frame N/A without delaying the matter through a PSC. This is an important issue but there is a question as to why this issue should be referred to the proposed PSC. According to the timeline the activity is on-going but there is little information in the public realm regarding any progress made. Questions are raised as to why this issue should be taken up by the proposed PSC when this is a decision that can be made by the incumbent government. In light of the concerns raised with the introduction of the Eighteenth Amendment, the independence of the Police 23 Commission in question. This is welcome and much needed to ensure that the process of law-making is in keeping with good governance principles and to avoid the passing and implementation of unjust and unfair legislation. It is not clear why this decision needs to be deferred to the proposed PSC. The LLRCs recommendation for the need to review Urgent Bill is not included in the present Action Plan (LLRC 9.228). This should be addressed. Unclear why the PSC should look at this issue, when the Government can take a decision on this. If at all, the Presidential Secretariat should take responsibility of monitoring to check whether obstacles to it being sung in both official languages, especially given that the obstacles have been

3. Arrive at a bi-partisan understanding that restitution of land is a national issue and will not be used as a tool by political parties to gain narrow political advantage. (LLRC 9.152)

4. De-link Police Department from institutions dealing with armed services. (LLRC 9.214)

5. Establish a constitutional provision for judicial review of legislation. Reach a consensus on an appropriate constitutional amendment to provide for an adequate timeframe to challenge proposed legislation. (LLRC 9.228)

Presidential Secretariat Refer to PSC Time frame N/A

6. Examine the implementation of the recommendation to maintain and support current practice of the National Anthem being sung simultaneously in two languages vis a vis the current constitutional provisions. (LLRC

Presidential Secretariat The implementation of the recommendations of the PSC 1 year

23

See (above) Activity 1, Independent Institutions.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 9.277) from state actors.

13. PROMOTING COMMUNAL HARMONY AND DEVELOPMENT 1. Examine the current policy in admitting University Grants Commission (UGC) , Positive measure but lack of follow up action. students to universities with a view to Ministry of Higher Education recommending any changes that would improve the criteria for admissions. (LLRC 9.251) Expert Committees Established 12 months 2. Upgrade facilities in schools island-wide through implementing the current programmes in keeping with the Mahinda Chintanaya. (LLRC 9.252) Ministry of Education Upgrading of educational facilities in schools 36 months Ministry of Education The establishment of a policy encouraging ethnically mixed schools and inter-community exchanges 24 months NHRC, Ministry of Education, Armed Forces, Inspector General of Police, National Institute of Education Implementation of NHRAP monitored and Module formulated and included in curriculum - Governed by the time frame as per the NHRAP. It may be more practicable to have minimum standards rather than assume equality in facilities can be achieved. Given that this is an on-going programme it may be useful for more public information as to where it currently stands. Positive measure.

3. Formulate a policy that would encourage ethnically mixed schools and ensure that schools include programmes to promote inter-community interactions. (LLRC 9.253 and 9.254)

4. Implement activities identified in the NHRAP to provide comprehensive, island-wide human rights education programmes targeting the school children, youth, members of the Security Forces, and the Police etc. and formulate a module for inclusion in secondary school curriculum. (LLRC 9.60)

This should be done with the involvement of civil society and individuals with expertise in the area. A time frame should be identified to implement this activity. In the NHRAP there is an awareness raising among duty bearers for which there is no specific time frame, instead it states the programme is on-going and the time for developing the modules is 3 months.

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 5. While the present policy caters adequately to the policy of ensuring public universities have ethnically mixed student populations with a choice of courses offered in all three languages, a group of experts to be mobilized to consider the present system and recommend any changes that would promote the trilingual process. (LLRC 9.257) 6. Presently, national competitions ensure island wide participation in inter-provincial and national sports competitions. However, a programme could be implemented to actively promote sports in the former conflict areas. (LLRC 9.258) 7. Formulate and implement programme to harness the untapped potential of the expatriate community, through Sri Lankan overseas Missions. (LLRC 9.261 and 9.263) 8. Assess the impact of existing programmes to improve the health, education and housing facilities for the estate sector, to identify areas that require improvement and revise programmes to make interventions more effective. UGC, Ministry of Higher Education Identification of a group of experts 12 months. A number of commissions and committee relating to education have submitted reports which have not yet been implemented. Thus this could be yet another committee and report with no action. No timeline for implementing findings.

Ministry of Sports Number of such competitions successfully conducted is the main indicator on-going Ministry of External Affairs Programme formulated 3 months Programme implemented 3 months Ministry of Health, Ministry Education, Ministry Plantation Industries, Ministry Child Development & Womens Affairs The publication of a report indicating the effectiveness of existing programmes- 6 months Police Department Implementation of such programmes and wide publicity of such programmes 6 months

Positive step but challenges remain regarding capacity to implement such a programme lack of clarity on the programme.

Positive focus on diaspora and inclusion of civil society.

Lack of timeline for implementing findings of the report. Also broader range of problems faced by Up-Country Tamils including documentation and land rights need to be taken up.

9. Disparity between Recommendation and Action. The LLRC recommendations calls for establishing a mechanism, in consultation with inter-faith groups that can serve as an early warning and diffusing system. The Action Plan

There is a significant disparity between the recommendation and suggested actions. The Action Plan ignores the specific recommendation calling for the inclusion of interfaith leaders and for the setting up of a mechanism that can ensure that communal or religious tension or friction does not lead to

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THE NATIONAL PLAN OF ACTION TO IMPLEMENT THE RECOMMENDATIONS OF THE LESSONS LEARNT AND RECONCILIATION COMMISSION

Centre for Policy Alternatives August 2012 calls for a continuation of the implementation of the Civil Defence Committee programme of the Police and Community Policing programme. Implement capacity building programmes for the Police officers in the CDCs. (LLRC 9.270) 10. Examine and introduce appropriate measures that could be adopted to create awareness of cultural affinities including through translation of literary works. Engage the cultural sector to highlight commonalities and mutual understanding between communities. (LLRC 9.274 and 9.275) 11. Examine the adequacy of penal legislation to deal with hate speech relating to ethnicity, religion, and literature and introduce law reform if necessary. (LLRC 9.283) conflict. Inclusion of civil society and ownership in the community policing is important.

Ministry of Cultural Affairs Programmes that would promote cultural affinities and commonalities between communities on-going

As this is on-going what is its status? Role of State TV and Radio in this?

Ministry of Justice Submission of draft legislation to Parliament 12 months

12. Disparity between Recommendation and Action. The Action Plan calls for continuing the present practice of expressing solidarity as one nation and one people and of pledging a collective commitment to non-violence and peace so as to ensure a non-recurrence of the past events that led to the conflict, while the LLRC Final Report calls for a separate event to be held on National Day to express solidarity with all victims of the conflict. (LLRC 9.285)

Presidential Secretariat, Ministry of National Languages and Social Integration, Ministry of Public Administration & Home Affairs

While there are positive aspects to reviewing legislation and standards related to hate speech there needs to be a more consultative process. Beyond, legal reform there needs to be greater attention on addressing hate speech, its causes and impact. The activity only addresses part of the LLRC recommendation and disregards an aspect of the recommendation to Set aside an event for remembering victims of the conflict on the National Day. (LLRC 9.285) Will victims be allowed to mourn and hold their own events as recommended by the LLRC? (LLRC 9.118 & 9.285) No reference to public apology by all politicians as recommended by the LLRC. (LLRC 9.284)

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