The debate to approve legislation to set up the Office for Reparations is due soon. The Office of Missing Persons has commenced work. This piece is written at a time when Ben Emmerson QC, the UN rapporteur on countering terrorism has gone record saying, Sri Lanka’s progress towards reform has “virtually ground to a halt” and “none of the measures so far adopted to fulfill Sri Lanka’s transitional justice commitments are adequate to ensure real progress” and “that progress towards reconciliation and a fair judicial system had virtually ground to a halt”.
This writer is no apologist for this government or that matter the last one. However, I do have opinions. Hence the focus of this compilation on the soon to be established Office for Reparations.
What is the Office for Reparations?
The Office for Reparation is an independent authority, created by the Office for Reparations Act, tasked with formulating, designing and implementing reparations policies aiming to redress victims who suffered violations in the course of past conflicts in Sri Lanka. The Office will receive applications from aggrieved persons and recommend to the Cabinet of Ministers most effective forms of individual and collective reparations, including specialized policies on public education, memorialization and on children, youth, women and victims of sexual violence and persons with disabilities.
Why is such an office necessary?
Sri Lanka’s Constitution clearly recognizes that every single Sri Lankan has the right to enjoy equal protection before the law. By this legislation the State, therefore, recognizes the dignity of all victims of past conflicts and that the respect for their right to an effective remedy will contribute to the promotion of reconciliation for the well-being and security of all Sri Lankans including future generations.
To respond to these obligations and needs, the Office for Reparations will need to formulate and implement policies to:
* Identify and address the needs of aggrieved persons who are eligible to request for reparations;
* Provide compensation to aggrieved persons in order to help them rebuild and restore their lives;
* Identify and learn from the failings of the previous reparation mechanisms when exercising its powers and functions;
* Act in the interest of the public as a transparent body independent from the government.
When will the Office for Reparations become operational?
The Office for Reparations Act, approved by the Cabinet, awaits enactment by the Parliament. The law stipulates that the Constitutional Council will then propose five commissioners of the future Office for Reparations to the President, who will appoint them. President has 14 days to appoint the commissioners and chose the chairman of the Office for Reparations among them.
Who will choose the chairman and commissioners of the office?
The five commissioners including the chairman of the office for Reparations will be appointed by the President based on the recommendations of the Constitutional Council.
What are the powers and functions of this office?
As set out in Section 11 of the Act the powers and functions of the office are to:
* Receive recommendations and applications pertaining to reparations
* ldentify aggrieved persons who are eligible for reparations;
* Maintain a database containing information relating to previous/ongoing reparation programmes as well as information necessary to achieve the objectives of this office;
* Make rules pertaining to the Office for Reparations, recommend policies regarding granting of reparations and implementing such policies if approved by the Cabinet of Ministers;
* Provide information, support and protection to aggrieved persons and inform them about the status of their applications;
* Establish additional committees, divisions, or units to the Office or Reparations as deemed necessary and exercise disciplinary control over employees and staff;
* Request assistance from a state, government, provincial or local authorities when necessary, as well as facilitating the provision of assistance (in the form of restitution, rehabilitation, administration, and welfare) provided by other persons or body of persons;
* Manage funds used to provide reparations and for the operationalizing of the Office for Reparations.
How does the law distinguish between individual and collective reparations?
The Act refers individual reparations as “measures as are intended to recognize the right to an effective remedy and benefits an individual aggrieved person” which may include monetary payments or loans, material benefit, education, training or skills development, administrative and welfare services, land and housing, etc. Collective reparations are referred to as “measures intended to recognize the right to an effective remedy and benefits to the communities or groups of aggrieved persons” and include means of remembrance, infrastructure and community development, etc. Specific reparations types and policies will be defined by the Office for Reparations within this framework, based on consultations with victims, affected communities and other groups and institutions.
Who is eligible for reparations?
The Office for Reparations will not be granting reparations to individuals or groups because they belonged to a certain political party, movement, state institution or formation. Reparations will not be granted on the basis of ethnicity or religious affiliation. Reparations under this law are intended for all Sri Lankans, without discrimination, who the law defines as “aggrieved persons” who suffered the following violations:
* Persons who have suffered a violation of human rights or humanitarian law (as contained in the First, Second, Third and Fourth Geneva Conventions of 1949), as applicable: in the course of, consequent to, or in connection with the conflict which took place in the Northern and Eastern Provinces or its aftermath; or
* in connection with political unrest or civil disturbances; or
* in the course of systematic gross violations of the rights of individuals, groups or communities of people of Sri Lanka; or
* due to an enforced disappearance as defined in the International Convention for the Protection of all Persons from Enforced Disappearance Act, No.5 of 2018;
* Relatives of a person deceased or missing as a result of such violations
Will the REPPIA programmes cease with the new law?
According to Section 26 (2) (f) of the Act, all programmes commenced by REPPIA, shall be deemed as programmes commenced by the Office for Reparations upon its commencement and continue to function in that capacity be continued and completed.
If they accept reparations, will victims have to give up on truth and justice?
Accepting reparations doesn’t mean accepting injustice. Section 12 (2) and (3) of the Act states that reparations shall not prevent victims from pursuing legal remedy against violations and such victims-shall be advised by the office’s outreach units of their ability to appear before any other appropriate authority, person, or body. Furthermore, the law is clear about the Office for Reparations working with other reconciliation bodies, such as the Office of the Missing Persons in pursuit of its mission.
Do victims have to come to come to Colombo to make complaints?
According to Section 10 (2) of the Act, the Office for Reparations may set up number of (temporary or mobile) regional units as deemed necessary, to ensure that reparations are accessible to all aggrieved persons. Through these offices people will be able to submit applications, make complaints, follow up on the status of their applications, receive advice on their rights and due services, seek psychosocial support, etc.
The draft reads well, is liberal and is quite sophisticated in its formulation. There has been criticism elsewhere with in adequate consideration of the very political, vexed and emotive nature of the subject matter at hand. Legislation is as good as its implementation. It follows the Colombo circuit of the charmed and privileged with connections should not continue to monopolize and clamour for positions seen the past few years.
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