* Implementation of recommendations crucial for Sri Lanka
* Grievances of Tamil people must be addressed; trilingualism and talks with diaspora suggested
Sunday Times Political Editor
More talks on the final report of the Lessons Learnt and Reconciliation Commission (LLRC) began last week just after President Mahinda Rajapaksa, returned from attending the Asia Pacific Democracy Forum in Bali, Indonesia.
There was a change of mind over President Rajapaksa tabling the report in Parliament and making a statement as revealed exclusively in the Sunday Times of December 4. In fact the outlines of such a speech, government sources said, were being put together by External Affairs Minister G.L. Peiris. It was decided that instead, House Leader Nimal Siripala de Silva make a statement and table the report. Thus, it was agreed it should take place not on December 21, the last day of the on-going budget sessions of Parliament but last Friday. Yet, President Rajapaksa is expected to be present in the House on Wednesday in his capacity as Minister of Finance.
LLRC Chairman and former Attorney General C.R. de Silva P.C.
No reason has been given for the change of mind though the President is entitled to be present in Parliament on any day with the passage of the 18th Amendment to the Constitution. In the light of the international ramifications of the report, the External Affairs Minister could have tabled it in Parliament. However, the government chose the Leader of the House as the most appropriate. For Minister Peiris, it would have been an embarrassing if not humiliating task to defend matters relating to the fallout from the Norwegian brokered Ceasefire Agreement with the Liberation Tigers of Tamil Eelam (LTTE).It was he who led the Sri Lankan delegation on behalf of the then United National Party government with the LTTE in 2002 in a naval base in Sattahip, located near the Thai tourist resort of Pattaya.
Within minutes of de Silva's statement and tabling of the report, posted on the official government website (priu.gov.lk) was the 407 page report. Another 275 pages of a bound volume that contains annexures, charts, list of places visited by the Commission etc. was also tabled. It took the government more than a month after the report was handed over to make it public. Besides his five-page statement in English, de Silva also tabled an 18-page Sinhala version that contained some of the salient features. In keeping with its mandate, the Commission chaired by President's Counsel C.R. de Silva, a former Attorney General, deals with a wide variety of issues. Most significant among them are answers to some of the findings of the three-member UN panel that charged in its report that both Sri Lankan troops and Tiger guerrillas had committed war crimes during the final stages of the war in May 2009. Several western government,, which had also raised similar issues, were awaiting the release of the final report of the LLRC before making their responses known.
The Commission has rejected the claim that Sri Lankan security forces violated International Humanitarian Law (IHL). The LLRC has said it is "satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority." The Security Forces operation were "deliberately slow" during the final stages of the conflict, "thereby evidencing a carefully worked out strategy of avoiding civilian casualties or minimizing them.
It noted that "protection of civilian life was a key factor in the formulation of policy for carrying out military operations." The Commission has held that Security Forces "had not deliberately targeted the civilians in the NFZ (No Fire Zone), although civilian casualties have in fact occurred in the course of the crossfire." It has held that "the LTTE targeting and killing of civilians who attempted to flee the conflict into safe areas, the threat posed by land mines and the resultant death and injuries to civilians, and the perils inherent in crossing the Nanthi Kadal Lagoon, had all collectively contributed to civilian casualties." It would be reasonable to conclude, the Commission has said, "that there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved."
On the question of allegations that the Security Forces deliberately targeted civilians, the Commission has noted "whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality," it is of the view "that the Security Forces were confronted with an unprecedented situation when no other choice was possible and all 'feasible precautions' that were practicable in the circumstances had been taken."
The principle of proportionality is derived from German law, and it first affected EU law in the Internationale Handelsgesellschaft case in 1970: "A public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure." Since then it has become one of the fundamental principles of the jurisprudence developed by the European Court of Justice. It is a safeguard against the unlimited use of legislative and administrative powers and considered to be something of a rule of common sense, according to which an administrative authority may only act to exactly the extent that is needed to achieve its objectives.
Whilst the Commission "finds it difficult to determine the precise circumstances" involving certain incidents of loss of civilian lives, it has however, observed that "the material nevertheless points towards possible implication of the Security Forces for the resulting death or injury to civilians, even though this may not have been with an intent to cause harm." It has said it was "the duty of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers." As a "humanitarian gesture," the Commission has said, "consideration should also be given to the next of kin of those killed and those injured……" This recommendation flows from representations made by witnesses. This aspect was revealed exclusively in the Sunday Times front page lead story on November 27.
The "non-availability of primary evidence of a technical nature" and "supporting civilian evidence, is equivocal in nature and does not warrant a definitive conclusion that one party or the other was responsible for the shelling" of hospitals. However, it has called for the "expeditious grant of appropriate redress to those affected" given the number of representations made by civilians that shells had in fact fallen on hospitals causing damage.
The Commission has also rejected allegations, particularly by some western nations, that food supplies to the civilian population during the war were inadequate. It said "It must be acknowledged that the maximum quantities of food supplies, that were possible under the prevailing circumstances had been delivered by the sea route to ameliorate the conditions confronting the affected civilians mainly due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the final No Fire Zones.
" Despite the unprecedented constraints imposed by the dynamics of the conflict and the deficiencies in the distribution system evident under those circumstances, the practices of the LTTE to appropriate food supplies that restricted a reasonable and equitable distribution of the limited supplies available, the Government of Sri Lanka, especially the CGES (Commissioner General of Essential Services), the international agencies such as those referred to above and other volunteer organizations, provided praiseworthy services and assistance in ensuring the maximum possible supplies to those affected persons during the last several weeks of the conflict.
"However, notwithstanding these efforts the fact remains that the civilians had been affected in terms of the adequacy of readily available food supplies to meet their nutritional needs particularly with the intensification of the conflict. Having examined the material before it, the Commission is of the view that the Government of Sri Lanka with the co-operation of the international community, in particular the agencies referred to above as well as civil society groups had, in a spirit of international co-operation and solidarity, taken all possible steps in getting food and medical supplies and other essential items across to the entrapped civilians despite enormous logistical difficulties of the operation." However, due to the "inconclusive nature of the material before it," the Commission has said "the issue of medical supplies to civilians in the conflict areas during the final days of the conflict is a matter that requires further examination given the humanitarian considerations involved."
Here are some of the other highlights with regard to issues raised by western nations, international organisations and even the three-member UN Panel appointed by Secretary General Ban Ki-moon.
CIVILIAN CASUALTIES: "The Commission recognises the complex challenge faced by the Security Forces in neutralizing a suicide cult based terrorist group seeking security behind a human shield. It also appreciates that the priority, and indeed the natural instinct, of the security forces and other authorities was to 'save lives rather than count bodies.' The Commission however notes with regret that there is no official record or a post conflict estimate of civilian casualties either by the civilian administrative authorities in the area or by the defence authorities. Whilst the Security Forces had their own casualty figures and an estimate of the LTTE casualties, the absence of authoritative civilian casualty records, with the exception of the limited data from the Ministry of Health, has led to widely varying figures of civilian casualty estimates by different entities, media organizations and authorities.
"The fact that there was no proper verification process, either by the civilian administration or by the military has contributed to the unverified sweeping generalizations, of a highly speculative nature as regards casualty figures.
"It is the considered view of the Commission, however, that eye witness accounts and other material available to it indicate that considerable civilian casualties had in fact occurred during the final phase of the conflict. This appears to be due to crossfire, the LTTE's targeted and deliberate firing at civilians, as well as due to the dynamics of the conflict situation, the perils of the geographical terrain, the LTTE using civilians as human shields and the LTTE's refusal to let the hostages get out of harm's way.
"The Commission therefore recommends that action be taken to;
a. Investigate the specific instances referred to, and any reported cases of deliberate attacks on civilians. If investigations disclose the commission of any offences, appropriate legal action should be taken to prosecute/punish the offenders.
b. Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first hand injury to civilians, as well as damage to property during the period of the conflict."
ILLEGAL ARMED GROUPS - "Activities of illegal armed groups, especially during the period under review are of serious concern to the Commission. According to a number of representations made before the Commission during its field visits to conflict affected areas, it appeared that the dominating presence and activities of such groups have created fear among the general public, contributing to an environment of impunity. Some of their illegal activities have affected the basic rights of people such as the right to life as there have been a number of alleged incidents of abduction, wrongful confinement and extortion by these groups. The whereabouts of most abductees are still unknown while some others have since been found dead. These acts, if proven to be true, constitute a violation of basic freedoms and fundamental rights of people.
"The Commission is of the view that proper investigations should be conducted in respect of the allegations against the illegal armed groups with a view to ascertain the truth and the institution of criminal proceedings against offenders in cases where sufficient evidence can be found. Action should also be taken to disarm and put an end to illegal activities of these groups, as it would otherwise present a serious obstacle to the on-going process of reconciliation. In this regard, the Commission strongly reiterates its Interim Recommendation seeking to disarm all illegal armed groups. While the Commission notes that some action has been taken in this regard, it regrets that no conclusive action has been taken. It is essential that conclusive action should be taken to address this issue as part of a time-bound and verifiable process. The Commission is of the view that had timely action been taken with regard to the Commission's Interim Recommendations, serious incidents such as the recent attack on the Editor of the Uthayan Newspaper may have been averted.
Among the other issues raised by the Commission are:
RECONCILIATION - The Commission was also reminded that despite the lapse of two years since the ending of the conflict, the violence, suspicion and sense of discrimination are still prevalent in social and political life. Delay in the implementation of a clearly focused post-conflict peace building agenda may have contributed to this situation. The observations/recommendations therefore represent the considered views of the Commission derived from these clear and present dangers as well as the opportunities outlined by a number of people who appeared before it. And they seek to foster a collective effort to be undertaken by all Sri Lankans at three levels:
i.e. at the level of the political leadership; at the level of civil society and at the level of the individual citizens.
The Commission however wishes to emphasize that the responsibility for being the prime mover of this process lies squarely with the Government. Since reconciliation is a process and not a one-time event, the efforts towards that objective should be continuous and broad-based whilst being fully supported by the elected Government.
The Commission takes the view that the root cause of the ethnic conflict in Sri Lanka lies in the failure of successive Governments to address the genuine grievances of the Tamil people.
A political solution is imperative to address the causes of the conflict. Everybody speaks about it, though there is no agreement about the diagnosis and the prescription."
LANGUAGE POLICY: Even though the Act making Sinhala the only official language of Sri Lanka was subsequently amended, first in 1958 to permit the use of Tamil in the North and East in administration, and then again, by the 13th Amendment to the Constitution in 1987 that made both Sinhala and Tamil official languages, the tardiness of Governments in giving effect to its implementation has further alienated the Tamil people, exacerbating their feelings of marginalization. This has resulted in a perception prevailing among the Tamil people of being second class citizens in their own country. The Commission during its visits to the affected areas witnessed first-hand, that even today many persons of the minority communities are made to transact business not in the language of their choice.
Whilst acknowledging the work in progress for recruiting Tamil speaking police officers, the Commission notes with regret that recommendations on urgent measures made by the Commission in its interim communication to the President on these matters have yet to be implemented. The learning of each other's languages should be made a compulsory part of the school curriculum. This would be a primary tool to ensure attitudinal changes amongst the two communities. Teaching Tamil to Sinhala children and Sinhala to Tamil children will result in greater understanding of each other's cultures.
The proper implementation of the language policy and ensuring trilingual (Sinhala, Tamil and English) fluency of future generations becomes vitally important. A tri-lingual education will allow children from very young days to get to understand each other.
The Commission therefore welcomes the Government initiative for a trilingual nation by the year 2020. To this end the necessary budgetary provisions must be made available on a priority basis for teacher training and staffing. No district or province should be categorized in terms of language. Officers in Government service should possess language skills to serve in any part of the country. It should be made compulsory that all Government offices have Tamil speaking officers at all times. In the case of Police Stations they should have bilingual officers on a 24 hour basis.
A complainant should have the right to have his/her statement taken down in the language of his/her choice. The Commission also recommends that the Government should have a pro-active policy to encourage mixed schools serving children from different ethnic and religious backgrounds. In this regard the Government should develop a carefully conceived policy facilitating the admission of children from different ethnic and religious groups to these schools. In respect of admissions to schools, disqualifying students on ethnic or religious grounds does not augur well for reconciliation. Any such practice should be discouraged. The Commission heard a range of views concerning the Sri Lankan expatriate community's role in the post-conflict processes in Sri Lanka, especially in reconciliation and socio-economic development.
TAMIL DIASPORA - Different views were expressed regarding the various 'diaspora groups', the roles they play and the impact they can have, particularly on the reconciliation effort. The Commission noted that while some 'Tamil diaspora groups' seek to contribute constructively to broad-based reconciliation efforts, other diaspora groups, especially, those described by some as supporting the LTTE, seem to adopt an adversarial approach. Some cite an alleged lack of meaningful dialogue with the Tamil political parties to find political solutions to post conflict issues such as devolution and other unmet minority grievances pertaining to equality and justice, as justification for their actions.
It is clear to the Commission that these 'hostile diaspora groups' can potentially undermine the genuine efforts in Sri Lanka towards reconciliation. The Commission therefore feels that the Government together with the relevant stakeholders, especially civil society, should develop a comprehensive approach to harness the potential of the expatriate community.
The main elements of such an approach should be to:
* engage the elected representatives of the minority parties in a meaningful dialogue on devolution and other grievances. The most efficacious way to make the 'hostile diaspora groups' irrelevant will be to make the local minority parties relevant through a structured dialogue that has visibility and recognition at a high political level;
* = take action to constructively engage those groups that still harbour adversarial attitudes and the LTTE approach of separation, and find space for those groups to contribute to the local reconciliation and development efforts, engage in a proactive diplomatic initiative with the international community, especially those countries that host these diaspora groups.
* the purpose of this initiative should be to brief those countries on the meaningful dialogue referred to above and the effective and visible action being taken to address the post conflict issues, including the implementation of recommendations of the present Commission. It is by doing so that the Government can persuade the host countries to listen less to these hostile diaspora groups, while being more receptive to the information provided by the Government. In addition, the Government must also be proactive in encouraging and supporting the work of the expatriates who do not advocate the discarded LTTE ideology of violence and separation and who espouse the democratic principles of ethnic harmony and consensual politics.
* the Government must also have more liberal policies and attitudes towards those expatriates who wish to invest and work in Sri Lanka, for instance by making it easier to obtain dual nationality status, effect remittances and be able to travel throughout the country without undue restrictions.
These elements require a carefully worked out programme of action on a broad front here in Sri Lanka and through the Sri Lanka diplomatic missions and with civil society groups here and abroad.
It is imperative that the Government take the initiative to constructively engage its development partners in Sri Lanka and abroad in order to develop a self-reliant, future oriented community in the Wanni, with open minds to build on and sustain reconciliatory community relationships. This is an area where the Sri Lankan 'diaspora' can support the Government of Sri Lanka, working in cooperation with the development partners, in areas such as housing, schooling, healthcare and livelihood activities.
* Recommendations
The Commission, recommends that the Government constitute a Multi - Disciplinary Task Force that will include representatives from the Presidential Secretariat, External Affairs, Defence, Foreign Employment, the Private Sector, and Academia, to propose a programme of action to harness the untapped potential of the expatriate community, and to respond to the concerns of the so-called 'hostile diaspora groups,' and to engage them constructively with the Government and other stakeholders involved in reconciliation process.
If such a comprehensive approach is not adopted urgently, the Commission feels that the current momentum towards creating a hostile external atmosphere could grow, and those groups that advocate such a process would continue to promote polarization that will significantly impair the genuine efforts of others who espouse reconciliation back home in Sri Lanka. The purpose of this initiative should be to brief those countries on the meaningful dialogue referred to above and the effective and visible action being taken to address the post conflict issues, including the implementation of recommendations of the present Commission.
GRIEVANCES OF THE TAMIL COMMUNITY: The grievances of the Tamil community have figured prominently in the discourse on the ethnic conflict and its causes. The articulation of grievances by the Tamil people continues to remain at the centre of the Sinhala-Tamil relationship and need to be recognized and addressed directly and fairly as the first step in the post-conflict process of reconciliation and peaceful coexistence.
No doubt these grievances have changed over time and some of them have been dealt with, at least partially. However, many new grievances have been added as the conflict escalated. In that process the majority community and other minorities have also had their share of grievances.
LAND ALIENATION BY UNAUTHORISED GROUPS: Since the latter part of the 1980s, the LTTE usurped the authority of the State to alienate land in the Northern and Eastern Provinces. The LTTE settled people of their choice not only on State land, but on some private lands too. The lands gained through ethnic cleansing were settled with LTTE nominees and "Mahavir" families. It becomes apparent that the LTTE used selective land alienation practices as a deliberate ploy to stamp their authority on the land distribution mechanism, gain control over Tamil families by using land as a punishment and reward system, and alternately disrupt and delegitimize civil administration.
As occasion permitted some other armed groups too had attempted to distribute land, with comparatively low success. Some civil administration officers in the East, are allegedly supporting the land claims of families settled by the LTTE as against the claims of original permit holders. Transfer of land through Spurious Deeds From the material before the Commission it transpired that State lands in Vavuniya, Mannar, Mullaittivu and Kilinochchi have been and currently are being transferred through fraudulent deeds. This is done in two ways.
State lands for which permits have been issued (normally for 2 ½ acres of land) for a limited period of time are being transferred as private land guaranteeing perpetual ownership. Large parcels of State lands encroached upon by individuals, usually with political backing are also transferred as private land and accorded perpetual ownership for the encroacher. Both categories of State land are being transferred through spurious deeds locally known as Japan Deeds. Some spurious deeds go back to 1956, 1961, 1965 and 1970 etc. A spurious deed purporting to transfer ownership of a State land in the guise of a private land in 1983 to a particular individual has been bought by the same individual in 2009 after a series of 'insider transfers' that helped to launder the title as a clear title.
These illegal transfers of 'ownership' of alienated State land by or to other persons who are not eligible for State land is a clear impediment for regularizing Land Development Representations made by a civilian at Oddamavaddy on 10.10.2010.
CEASEFIRE AGREEMENT: The CFA brought about a short lived respite to a country and people who had suffered decades of terrorism and counter violence. However unstable and eventually unproductive, the CFA gave an opportunity, albeit without necessarily providing a sound political or security framework, for all parties concerned to make an effort to lay a foundation for a process leading to a negotiated solution. However, as the events unfolded it was clear that none of this materialized.
Conceptual flaws and implementational deficits of the CFA process including the untenable dual roles Norway took on as facilitator of the peace process on the one hand and the Head of the SLMM (Sri Lanka Monitoring Mission) on the other, and the CFA's failure to provide locomotion to a sustainable peace process indicate that it was not proven to be a successful model for peace making between State and non-State actors. The clearly manifest LTTE disinterest in any negotiated solution other than its declared goal of Eelam and the absence of consensual approaches to vital national issues among different political parties including Tamil political parties within the 'mainstream' democratic system of the country, too contributed to this unhappy and damaging experience.
The LTTE clearly capitalized on the CFA deficiencies both conceptual and implementational, and consolidated the territorial rewards, and recognition accorded to them; benefited from the parity of status and the lack of reciprocity; exploited the absence of any provisions to start political negotiations, let alone decommissioning of weapons; abused the provisions of the CFA to exclude legitimate maritime activity by the Sri Lanka Navy thus facilitating illicit arms trafficking in contravention of national and international law, including UNSC Res. 1373 of 2001; benefited from the absence of any credible verification regime to deter violations; insidiously abused the total absence of any human rights obligations, let alone an effective regime against the abhorrent practice of employing child soldiers…"
As expected, the government did not spell out a road map on how all the issues raised in the LLRC report would be implemented. Minister de Silva, however, said that the government "seeks the support of all members of this House, rising above party affiliation, to carry forward the task of implementation with the energy that is called for at this crucial time."
Channel 4 video: Independent probe needed
The Lessons Learnt and Reconciliation Commission has in its final report called upon the Government to investigate the controversial Channel 4 video titled Sri Lanka's Killing Fields.
Here is what the Commission had to say on the video: "With reference to the considerations concerning the Channel 4 video, the Commission, has the following observations/recommendations to make:
a. The images contained in the footage are truly gruesome and shocking, irrespective of whether the incidents are 'real' or 'staged' ones.
b. While the Government of Sri Lanka emphatically stated that the video seeks to artificially construct the incidents, the technical experts commissioned by the UN Special Rapporteurs emphasize that the video provides prima facie material on possible summary executions and sexual assault involving people who appear to be in captivity. Both the Government as well as the Rapporteurs' experts, however point to several technical ambiguities in the video which remain un-clarified.
c. There are further technical issues and forensic questions brought out by independent experts, Dr. Chathura de Silva and Prof. E. A. Yfantis that cast significant doubts about the authenticity of the video, especially the probability of electronic tampering and the artificial construction of the 'blood effect' in the video.
d. the non-availability of a copy of the broadcast footage has not helped in finding conclusive clarification of such technical ambiguities.
e. Consequently, the Commission finds that there are troubling technical and forensic questions of a serious nature that cast significant doubts about the authenticity of this video and the credibility of its contents. It is also observed that trauma evident on the bodies of victims does not appear to be consistent with the type of weapon used and the close range at which the firing is seen to have taken place. The Commission wishes also to note however that someone had recorded or otherwise produced these images and the video and made it available to the Broadcaster concerned. One expert enlisted by the Commission observes that 'the segments of the footage appear to have been recorded in a natural environment' and that some of the bodies of alleged victims show 'no artefacts of manipulation' either physically or by digital means.
f. The Commission regrets the fact that the Broadcaster did not respond positively to the request made by the Commission to provide more comprehensive information.
Greater cooperation by the organization that provided to the television stations these video images and by the Producer/Broadcaster that aired this footage is essential. Based on the available material and taking into account the above considerations, the Commission wishes to recommend that the Government initiate an independent investigation into this matter to establish the truth or otherwise of the allegations arising from the video footage.
The Commission considers this course of action as necessary and urgent for two reasons:
a. Firstly, if as claimed by the informants who supplied the images and by the experts enlisted by Messrs Alston and Heyns, the footage reflects evidence of real incidents of summary execution of persons in captivity and of possible rape victims, it would be necessary to investigate and prosecute offenders as these are clearly illegal acts. It is also the obligation of the Government to clear the good name and protect the honour and professional reputation of soldiers who defended the territorial integrity of Sri Lanka and particularly the many thousands of soldiers who perished carrying out their combat duties cleanly and professionally against a widely condemned terrorist group who used most inhumane tactics in combat. Offences if any, of a few cannot be allowed to tarnish the honour of the many who upheld the finest traditions of service.
b. Secondly, if on the other hand footage is artificially constructed or the incidents are staged as contended by several experts, the issue becomes even more serious and the need to establish facts of this case, equally compelling.
The Commission shares some of the significant doubts expressed on the integrity of the video and feels strongly that if that were to be the case, whoever constructed the video and the organization that broadcast it should be held responsible for a serious instance of gross disinformation. Such conduct would constitute grave damage and injustice to the people of Sri Lanka and to those soldiers who fought professionally and sacrificed their lives in order to save other innocent lives from the LTTE stranglehold. Equally, it would also represent a body blow to the notion of the Freedom of Expression.
From the perspective of its Warrant, the Commission is also concerned that such acts would seriously prejudice and place major obstacles in the way of the on-going efforts, both national and international, to promote and consolidate a viable process of reconciliation, healing and reconstruction in Sri Lanka.
The Commission therefore recommends that the Government of Sri Lanka institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.
Equally, the Commission feels that arrangements should be made to ensure and facilitate the confidentiality and protection of information and informants. The Commission strongly urges all those concerned, especially the organizations that provided the original images and the broadcasting organization, to extend fullest cooperation by providing the necessary information to facilitate this work.
Implement Right to Information Bill, ensure Media Freedom
The Lessons Learnt and Reconciliation Commission has called upon the government to enact legislation to ensure the right to information and take all steps to prevent harassment and attacks on media personnel.
Commenting on Freedom of Expression and Right to Information, the Commission states: "The Commission was deeply disturbed by persistent reports concerning attacks on journalists and media institutions and killing of journalists and the fact that these incidents remain to be conclusively investigated and perpetrators brought to justice.
The Commission was also alarmed by the deplorable attack on the Editor of the Uthayan newspaper in Jaffna, which occurred while the Commission's sittings were still in progress. The Commission condemns this attack. Such actions clearly place great obstacles in the way of any reconciliation efforts. Any failure to investigate and prosecute offenders would undermine the process of reconciliation and the Rule of Law. Freedom of expression and right to information, which are universally, regarded as basic human rights play a pivotal role in any reconciliation process. It is therefore essential that media freedom be enhanced in keeping with democratic principles and relevant fundamental rights obligations, since any restrictions placed on media freedom would only contribute to an environment of distrust and fear within and among ethnic groups.
This would only prevent a constructive exchange of information and opinion placing severe constraints on the on-going reconciliation process. The Commission strongly recommends that:
a) All steps should be taken to prevent harassment and attacks on media personnel and institutions.
b) Action must be taken to impose deterrent punishment on such offences, and also priority should be given to the investigation, prosecution and disposal of such cases to build-up public confidence in the criminal justice system.
c) Past incidents of such illegal action should be properly investigated. The Commission observes with concern that a number of journalists and media institutions have been attacked in the recent past. Such offences erode the public confidence in the system of justice. Therefore, the Commission recommends that steps should be taken to expeditiously conclude investigations so that offenders are brought to book without delay.
d) The Government should ensure the freedom of movement of media personnel in the North and East, as it would help in the exchange of information contributing to the process of reconciliation.
Set up Independent Police Commission
The LLRC has also made a number of other significant recommendations with regard to a number of other aspects. Here are some highlights:
* Police Department be delinked from the institutions dealing with the armed forces which are responsible for the security of the state.
* An independent permanent Police Commission should be empowered to monitor the performance of the Police Service and ensure that all Police officers act independently and maintain a high degree of professional conduct.
* The time frame for legislation before the Supreme Court, in particular of urgent bills, is grossly inadequate. The Supreme Court is called upon to make a determination in respect of urgent bills within a period of 24 hours or on a date not later than three days as specified by His Excellency the President (Article 122(1) of the Constitution). Public intervention regarding proposed legislation is an integral part of a vibrant democracy. Therefore, the Commission recommends, that the Government and the Opposition make all endeavours to reach a consensus on an appropriate constitutional amendment, to provide for an adequate timeframe to challenge proposed legislation.
* A second chamber comprising Representatives from the Provinces is likely to generate a sense of confidence among the political leadership and among the people in the Provinces
ST
* Grievances of Tamil people must be addressed; trilingualism and talks with diaspora suggested
Sunday Times Political Editor
More talks on the final report of the Lessons Learnt and Reconciliation Commission (LLRC) began last week just after President Mahinda Rajapaksa, returned from attending the Asia Pacific Democracy Forum in Bali, Indonesia.
There was a change of mind over President Rajapaksa tabling the report in Parliament and making a statement as revealed exclusively in the Sunday Times of December 4. In fact the outlines of such a speech, government sources said, were being put together by External Affairs Minister G.L. Peiris. It was decided that instead, House Leader Nimal Siripala de Silva make a statement and table the report. Thus, it was agreed it should take place not on December 21, the last day of the on-going budget sessions of Parliament but last Friday. Yet, President Rajapaksa is expected to be present in the House on Wednesday in his capacity as Minister of Finance.
LLRC Chairman and former Attorney General C.R. de Silva P.C.
No reason has been given for the change of mind though the President is entitled to be present in Parliament on any day with the passage of the 18th Amendment to the Constitution. In the light of the international ramifications of the report, the External Affairs Minister could have tabled it in Parliament. However, the government chose the Leader of the House as the most appropriate. For Minister Peiris, it would have been an embarrassing if not humiliating task to defend matters relating to the fallout from the Norwegian brokered Ceasefire Agreement with the Liberation Tigers of Tamil Eelam (LTTE).It was he who led the Sri Lankan delegation on behalf of the then United National Party government with the LTTE in 2002 in a naval base in Sattahip, located near the Thai tourist resort of Pattaya.
Within minutes of de Silva's statement and tabling of the report, posted on the official government website (priu.gov.lk) was the 407 page report. Another 275 pages of a bound volume that contains annexures, charts, list of places visited by the Commission etc. was also tabled. It took the government more than a month after the report was handed over to make it public. Besides his five-page statement in English, de Silva also tabled an 18-page Sinhala version that contained some of the salient features. In keeping with its mandate, the Commission chaired by President's Counsel C.R. de Silva, a former Attorney General, deals with a wide variety of issues. Most significant among them are answers to some of the findings of the three-member UN panel that charged in its report that both Sri Lankan troops and Tiger guerrillas had committed war crimes during the final stages of the war in May 2009. Several western government,, which had also raised similar issues, were awaiting the release of the final report of the LLRC before making their responses known.
The Commission has rejected the claim that Sri Lankan security forces violated International Humanitarian Law (IHL). The LLRC has said it is "satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully conceived, in which the protection of the civilian population was given the highest priority." The Security Forces operation were "deliberately slow" during the final stages of the conflict, "thereby evidencing a carefully worked out strategy of avoiding civilian casualties or minimizing them.
It noted that "protection of civilian life was a key factor in the formulation of policy for carrying out military operations." The Commission has held that Security Forces "had not deliberately targeted the civilians in the NFZ (No Fire Zone), although civilian casualties have in fact occurred in the course of the crossfire." It has held that "the LTTE targeting and killing of civilians who attempted to flee the conflict into safe areas, the threat posed by land mines and the resultant death and injuries to civilians, and the perils inherent in crossing the Nanthi Kadal Lagoon, had all collectively contributed to civilian casualties." It would be reasonable to conclude, the Commission has said, "that there appears to have been a bona fide expectation that an attack on LTTE gun positions would make a relevant and proportional contribution to the objective of the military attack involved."
On the question of allegations that the Security Forces deliberately targeted civilians, the Commission has noted "whether the action of the Security Forces of returning fire into the NFZs was excessive in the context of the Principle of Proportionality," it is of the view "that the Security Forces were confronted with an unprecedented situation when no other choice was possible and all 'feasible precautions' that were practicable in the circumstances had been taken."
The principle of proportionality is derived from German law, and it first affected EU law in the Internationale Handelsgesellschaft case in 1970: "A public authority may not impose obligations on a citizen except to the extent to which they are strictly necessary in the public interest to attain the purpose of the measure." Since then it has become one of the fundamental principles of the jurisprudence developed by the European Court of Justice. It is a safeguard against the unlimited use of legislative and administrative powers and considered to be something of a rule of common sense, according to which an administrative authority may only act to exactly the extent that is needed to achieve its objectives.
Whilst the Commission "finds it difficult to determine the precise circumstances" involving certain incidents of loss of civilian lives, it has however, observed that "the material nevertheless points towards possible implication of the Security Forces for the resulting death or injury to civilians, even though this may not have been with an intent to cause harm." It has said it was "the duty of the State to ascertain more fully, the circumstances under which such incidents could have occurred, and if such investigations disclose wrongful conduct, to prosecute and punish the wrongdoers." As a "humanitarian gesture," the Commission has said, "consideration should also be given to the next of kin of those killed and those injured……" This recommendation flows from representations made by witnesses. This aspect was revealed exclusively in the Sunday Times front page lead story on November 27.
The "non-availability of primary evidence of a technical nature" and "supporting civilian evidence, is equivocal in nature and does not warrant a definitive conclusion that one party or the other was responsible for the shelling" of hospitals. However, it has called for the "expeditious grant of appropriate redress to those affected" given the number of representations made by civilians that shells had in fact fallen on hospitals causing damage.
The Commission has also rejected allegations, particularly by some western nations, that food supplies to the civilian population during the war were inadequate. It said "It must be acknowledged that the maximum quantities of food supplies, that were possible under the prevailing circumstances had been delivered by the sea route to ameliorate the conditions confronting the affected civilians mainly due to the collective efforts of the Government of Sri Lanka, in particular the GAs and the Security Forces as well as international agencies such as the ICRC and WFP, and other volunteers who had provided selfless service on the spot in the final No Fire Zones.
" Despite the unprecedented constraints imposed by the dynamics of the conflict and the deficiencies in the distribution system evident under those circumstances, the practices of the LTTE to appropriate food supplies that restricted a reasonable and equitable distribution of the limited supplies available, the Government of Sri Lanka, especially the CGES (Commissioner General of Essential Services), the international agencies such as those referred to above and other volunteer organizations, provided praiseworthy services and assistance in ensuring the maximum possible supplies to those affected persons during the last several weeks of the conflict.
"However, notwithstanding these efforts the fact remains that the civilians had been affected in terms of the adequacy of readily available food supplies to meet their nutritional needs particularly with the intensification of the conflict. Having examined the material before it, the Commission is of the view that the Government of Sri Lanka with the co-operation of the international community, in particular the agencies referred to above as well as civil society groups had, in a spirit of international co-operation and solidarity, taken all possible steps in getting food and medical supplies and other essential items across to the entrapped civilians despite enormous logistical difficulties of the operation." However, due to the "inconclusive nature of the material before it," the Commission has said "the issue of medical supplies to civilians in the conflict areas during the final days of the conflict is a matter that requires further examination given the humanitarian considerations involved."
Here are some of the other highlights with regard to issues raised by western nations, international organisations and even the three-member UN Panel appointed by Secretary General Ban Ki-moon.
CIVILIAN CASUALTIES: "The Commission recognises the complex challenge faced by the Security Forces in neutralizing a suicide cult based terrorist group seeking security behind a human shield. It also appreciates that the priority, and indeed the natural instinct, of the security forces and other authorities was to 'save lives rather than count bodies.' The Commission however notes with regret that there is no official record or a post conflict estimate of civilian casualties either by the civilian administrative authorities in the area or by the defence authorities. Whilst the Security Forces had their own casualty figures and an estimate of the LTTE casualties, the absence of authoritative civilian casualty records, with the exception of the limited data from the Ministry of Health, has led to widely varying figures of civilian casualty estimates by different entities, media organizations and authorities.
"The fact that there was no proper verification process, either by the civilian administration or by the military has contributed to the unverified sweeping generalizations, of a highly speculative nature as regards casualty figures.
"It is the considered view of the Commission, however, that eye witness accounts and other material available to it indicate that considerable civilian casualties had in fact occurred during the final phase of the conflict. This appears to be due to crossfire, the LTTE's targeted and deliberate firing at civilians, as well as due to the dynamics of the conflict situation, the perils of the geographical terrain, the LTTE using civilians as human shields and the LTTE's refusal to let the hostages get out of harm's way.
"The Commission therefore recommends that action be taken to;
a. Investigate the specific instances referred to, and any reported cases of deliberate attacks on civilians. If investigations disclose the commission of any offences, appropriate legal action should be taken to prosecute/punish the offenders.
b. Conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first hand injury to civilians, as well as damage to property during the period of the conflict."
ILLEGAL ARMED GROUPS - "Activities of illegal armed groups, especially during the period under review are of serious concern to the Commission. According to a number of representations made before the Commission during its field visits to conflict affected areas, it appeared that the dominating presence and activities of such groups have created fear among the general public, contributing to an environment of impunity. Some of their illegal activities have affected the basic rights of people such as the right to life as there have been a number of alleged incidents of abduction, wrongful confinement and extortion by these groups. The whereabouts of most abductees are still unknown while some others have since been found dead. These acts, if proven to be true, constitute a violation of basic freedoms and fundamental rights of people.
"The Commission is of the view that proper investigations should be conducted in respect of the allegations against the illegal armed groups with a view to ascertain the truth and the institution of criminal proceedings against offenders in cases where sufficient evidence can be found. Action should also be taken to disarm and put an end to illegal activities of these groups, as it would otherwise present a serious obstacle to the on-going process of reconciliation. In this regard, the Commission strongly reiterates its Interim Recommendation seeking to disarm all illegal armed groups. While the Commission notes that some action has been taken in this regard, it regrets that no conclusive action has been taken. It is essential that conclusive action should be taken to address this issue as part of a time-bound and verifiable process. The Commission is of the view that had timely action been taken with regard to the Commission's Interim Recommendations, serious incidents such as the recent attack on the Editor of the Uthayan Newspaper may have been averted.
Among the other issues raised by the Commission are:
RECONCILIATION - The Commission was also reminded that despite the lapse of two years since the ending of the conflict, the violence, suspicion and sense of discrimination are still prevalent in social and political life. Delay in the implementation of a clearly focused post-conflict peace building agenda may have contributed to this situation. The observations/recommendations therefore represent the considered views of the Commission derived from these clear and present dangers as well as the opportunities outlined by a number of people who appeared before it. And they seek to foster a collective effort to be undertaken by all Sri Lankans at three levels:
i.e. at the level of the political leadership; at the level of civil society and at the level of the individual citizens.
The Commission however wishes to emphasize that the responsibility for being the prime mover of this process lies squarely with the Government. Since reconciliation is a process and not a one-time event, the efforts towards that objective should be continuous and broad-based whilst being fully supported by the elected Government.
The Commission takes the view that the root cause of the ethnic conflict in Sri Lanka lies in the failure of successive Governments to address the genuine grievances of the Tamil people.
A political solution is imperative to address the causes of the conflict. Everybody speaks about it, though there is no agreement about the diagnosis and the prescription."
LANGUAGE POLICY: Even though the Act making Sinhala the only official language of Sri Lanka was subsequently amended, first in 1958 to permit the use of Tamil in the North and East in administration, and then again, by the 13th Amendment to the Constitution in 1987 that made both Sinhala and Tamil official languages, the tardiness of Governments in giving effect to its implementation has further alienated the Tamil people, exacerbating their feelings of marginalization. This has resulted in a perception prevailing among the Tamil people of being second class citizens in their own country. The Commission during its visits to the affected areas witnessed first-hand, that even today many persons of the minority communities are made to transact business not in the language of their choice.
Whilst acknowledging the work in progress for recruiting Tamil speaking police officers, the Commission notes with regret that recommendations on urgent measures made by the Commission in its interim communication to the President on these matters have yet to be implemented. The learning of each other's languages should be made a compulsory part of the school curriculum. This would be a primary tool to ensure attitudinal changes amongst the two communities. Teaching Tamil to Sinhala children and Sinhala to Tamil children will result in greater understanding of each other's cultures.
The proper implementation of the language policy and ensuring trilingual (Sinhala, Tamil and English) fluency of future generations becomes vitally important. A tri-lingual education will allow children from very young days to get to understand each other.
The Commission therefore welcomes the Government initiative for a trilingual nation by the year 2020. To this end the necessary budgetary provisions must be made available on a priority basis for teacher training and staffing. No district or province should be categorized in terms of language. Officers in Government service should possess language skills to serve in any part of the country. It should be made compulsory that all Government offices have Tamil speaking officers at all times. In the case of Police Stations they should have bilingual officers on a 24 hour basis.
A complainant should have the right to have his/her statement taken down in the language of his/her choice. The Commission also recommends that the Government should have a pro-active policy to encourage mixed schools serving children from different ethnic and religious backgrounds. In this regard the Government should develop a carefully conceived policy facilitating the admission of children from different ethnic and religious groups to these schools. In respect of admissions to schools, disqualifying students on ethnic or religious grounds does not augur well for reconciliation. Any such practice should be discouraged. The Commission heard a range of views concerning the Sri Lankan expatriate community's role in the post-conflict processes in Sri Lanka, especially in reconciliation and socio-economic development.
TAMIL DIASPORA - Different views were expressed regarding the various 'diaspora groups', the roles they play and the impact they can have, particularly on the reconciliation effort. The Commission noted that while some 'Tamil diaspora groups' seek to contribute constructively to broad-based reconciliation efforts, other diaspora groups, especially, those described by some as supporting the LTTE, seem to adopt an adversarial approach. Some cite an alleged lack of meaningful dialogue with the Tamil political parties to find political solutions to post conflict issues such as devolution and other unmet minority grievances pertaining to equality and justice, as justification for their actions.
It is clear to the Commission that these 'hostile diaspora groups' can potentially undermine the genuine efforts in Sri Lanka towards reconciliation. The Commission therefore feels that the Government together with the relevant stakeholders, especially civil society, should develop a comprehensive approach to harness the potential of the expatriate community.
The main elements of such an approach should be to:
* engage the elected representatives of the minority parties in a meaningful dialogue on devolution and other grievances. The most efficacious way to make the 'hostile diaspora groups' irrelevant will be to make the local minority parties relevant through a structured dialogue that has visibility and recognition at a high political level;
* = take action to constructively engage those groups that still harbour adversarial attitudes and the LTTE approach of separation, and find space for those groups to contribute to the local reconciliation and development efforts, engage in a proactive diplomatic initiative with the international community, especially those countries that host these diaspora groups.
* the purpose of this initiative should be to brief those countries on the meaningful dialogue referred to above and the effective and visible action being taken to address the post conflict issues, including the implementation of recommendations of the present Commission. It is by doing so that the Government can persuade the host countries to listen less to these hostile diaspora groups, while being more receptive to the information provided by the Government. In addition, the Government must also be proactive in encouraging and supporting the work of the expatriates who do not advocate the discarded LTTE ideology of violence and separation and who espouse the democratic principles of ethnic harmony and consensual politics.
* the Government must also have more liberal policies and attitudes towards those expatriates who wish to invest and work in Sri Lanka, for instance by making it easier to obtain dual nationality status, effect remittances and be able to travel throughout the country without undue restrictions.
These elements require a carefully worked out programme of action on a broad front here in Sri Lanka and through the Sri Lanka diplomatic missions and with civil society groups here and abroad.
It is imperative that the Government take the initiative to constructively engage its development partners in Sri Lanka and abroad in order to develop a self-reliant, future oriented community in the Wanni, with open minds to build on and sustain reconciliatory community relationships. This is an area where the Sri Lankan 'diaspora' can support the Government of Sri Lanka, working in cooperation with the development partners, in areas such as housing, schooling, healthcare and livelihood activities.
* Recommendations
The Commission, recommends that the Government constitute a Multi - Disciplinary Task Force that will include representatives from the Presidential Secretariat, External Affairs, Defence, Foreign Employment, the Private Sector, and Academia, to propose a programme of action to harness the untapped potential of the expatriate community, and to respond to the concerns of the so-called 'hostile diaspora groups,' and to engage them constructively with the Government and other stakeholders involved in reconciliation process.
If such a comprehensive approach is not adopted urgently, the Commission feels that the current momentum towards creating a hostile external atmosphere could grow, and those groups that advocate such a process would continue to promote polarization that will significantly impair the genuine efforts of others who espouse reconciliation back home in Sri Lanka. The purpose of this initiative should be to brief those countries on the meaningful dialogue referred to above and the effective and visible action being taken to address the post conflict issues, including the implementation of recommendations of the present Commission.
GRIEVANCES OF THE TAMIL COMMUNITY: The grievances of the Tamil community have figured prominently in the discourse on the ethnic conflict and its causes. The articulation of grievances by the Tamil people continues to remain at the centre of the Sinhala-Tamil relationship and need to be recognized and addressed directly and fairly as the first step in the post-conflict process of reconciliation and peaceful coexistence.
No doubt these grievances have changed over time and some of them have been dealt with, at least partially. However, many new grievances have been added as the conflict escalated. In that process the majority community and other minorities have also had their share of grievances.
LAND ALIENATION BY UNAUTHORISED GROUPS: Since the latter part of the 1980s, the LTTE usurped the authority of the State to alienate land in the Northern and Eastern Provinces. The LTTE settled people of their choice not only on State land, but on some private lands too. The lands gained through ethnic cleansing were settled with LTTE nominees and "Mahavir" families. It becomes apparent that the LTTE used selective land alienation practices as a deliberate ploy to stamp their authority on the land distribution mechanism, gain control over Tamil families by using land as a punishment and reward system, and alternately disrupt and delegitimize civil administration.
As occasion permitted some other armed groups too had attempted to distribute land, with comparatively low success. Some civil administration officers in the East, are allegedly supporting the land claims of families settled by the LTTE as against the claims of original permit holders. Transfer of land through Spurious Deeds From the material before the Commission it transpired that State lands in Vavuniya, Mannar, Mullaittivu and Kilinochchi have been and currently are being transferred through fraudulent deeds. This is done in two ways.
State lands for which permits have been issued (normally for 2 ½ acres of land) for a limited period of time are being transferred as private land guaranteeing perpetual ownership. Large parcels of State lands encroached upon by individuals, usually with political backing are also transferred as private land and accorded perpetual ownership for the encroacher. Both categories of State land are being transferred through spurious deeds locally known as Japan Deeds. Some spurious deeds go back to 1956, 1961, 1965 and 1970 etc. A spurious deed purporting to transfer ownership of a State land in the guise of a private land in 1983 to a particular individual has been bought by the same individual in 2009 after a series of 'insider transfers' that helped to launder the title as a clear title.
These illegal transfers of 'ownership' of alienated State land by or to other persons who are not eligible for State land is a clear impediment for regularizing Land Development Representations made by a civilian at Oddamavaddy on 10.10.2010.
CEASEFIRE AGREEMENT: The CFA brought about a short lived respite to a country and people who had suffered decades of terrorism and counter violence. However unstable and eventually unproductive, the CFA gave an opportunity, albeit without necessarily providing a sound political or security framework, for all parties concerned to make an effort to lay a foundation for a process leading to a negotiated solution. However, as the events unfolded it was clear that none of this materialized.
Conceptual flaws and implementational deficits of the CFA process including the untenable dual roles Norway took on as facilitator of the peace process on the one hand and the Head of the SLMM (Sri Lanka Monitoring Mission) on the other, and the CFA's failure to provide locomotion to a sustainable peace process indicate that it was not proven to be a successful model for peace making between State and non-State actors. The clearly manifest LTTE disinterest in any negotiated solution other than its declared goal of Eelam and the absence of consensual approaches to vital national issues among different political parties including Tamil political parties within the 'mainstream' democratic system of the country, too contributed to this unhappy and damaging experience.
The LTTE clearly capitalized on the CFA deficiencies both conceptual and implementational, and consolidated the territorial rewards, and recognition accorded to them; benefited from the parity of status and the lack of reciprocity; exploited the absence of any provisions to start political negotiations, let alone decommissioning of weapons; abused the provisions of the CFA to exclude legitimate maritime activity by the Sri Lanka Navy thus facilitating illicit arms trafficking in contravention of national and international law, including UNSC Res. 1373 of 2001; benefited from the absence of any credible verification regime to deter violations; insidiously abused the total absence of any human rights obligations, let alone an effective regime against the abhorrent practice of employing child soldiers…"
As expected, the government did not spell out a road map on how all the issues raised in the LLRC report would be implemented. Minister de Silva, however, said that the government "seeks the support of all members of this House, rising above party affiliation, to carry forward the task of implementation with the energy that is called for at this crucial time."
Channel 4 video: Independent probe needed
The Lessons Learnt and Reconciliation Commission has in its final report called upon the Government to investigate the controversial Channel 4 video titled Sri Lanka's Killing Fields.
Here is what the Commission had to say on the video: "With reference to the considerations concerning the Channel 4 video, the Commission, has the following observations/recommendations to make:
a. The images contained in the footage are truly gruesome and shocking, irrespective of whether the incidents are 'real' or 'staged' ones.
b. While the Government of Sri Lanka emphatically stated that the video seeks to artificially construct the incidents, the technical experts commissioned by the UN Special Rapporteurs emphasize that the video provides prima facie material on possible summary executions and sexual assault involving people who appear to be in captivity. Both the Government as well as the Rapporteurs' experts, however point to several technical ambiguities in the video which remain un-clarified.
c. There are further technical issues and forensic questions brought out by independent experts, Dr. Chathura de Silva and Prof. E. A. Yfantis that cast significant doubts about the authenticity of the video, especially the probability of electronic tampering and the artificial construction of the 'blood effect' in the video.
d. the non-availability of a copy of the broadcast footage has not helped in finding conclusive clarification of such technical ambiguities.
e. Consequently, the Commission finds that there are troubling technical and forensic questions of a serious nature that cast significant doubts about the authenticity of this video and the credibility of its contents. It is also observed that trauma evident on the bodies of victims does not appear to be consistent with the type of weapon used and the close range at which the firing is seen to have taken place. The Commission wishes also to note however that someone had recorded or otherwise produced these images and the video and made it available to the Broadcaster concerned. One expert enlisted by the Commission observes that 'the segments of the footage appear to have been recorded in a natural environment' and that some of the bodies of alleged victims show 'no artefacts of manipulation' either physically or by digital means.
f. The Commission regrets the fact that the Broadcaster did not respond positively to the request made by the Commission to provide more comprehensive information.
Greater cooperation by the organization that provided to the television stations these video images and by the Producer/Broadcaster that aired this footage is essential. Based on the available material and taking into account the above considerations, the Commission wishes to recommend that the Government initiate an independent investigation into this matter to establish the truth or otherwise of the allegations arising from the video footage.
The Commission considers this course of action as necessary and urgent for two reasons:
a. Firstly, if as claimed by the informants who supplied the images and by the experts enlisted by Messrs Alston and Heyns, the footage reflects evidence of real incidents of summary execution of persons in captivity and of possible rape victims, it would be necessary to investigate and prosecute offenders as these are clearly illegal acts. It is also the obligation of the Government to clear the good name and protect the honour and professional reputation of soldiers who defended the territorial integrity of Sri Lanka and particularly the many thousands of soldiers who perished carrying out their combat duties cleanly and professionally against a widely condemned terrorist group who used most inhumane tactics in combat. Offences if any, of a few cannot be allowed to tarnish the honour of the many who upheld the finest traditions of service.
b. Secondly, if on the other hand footage is artificially constructed or the incidents are staged as contended by several experts, the issue becomes even more serious and the need to establish facts of this case, equally compelling.
The Commission shares some of the significant doubts expressed on the integrity of the video and feels strongly that if that were to be the case, whoever constructed the video and the organization that broadcast it should be held responsible for a serious instance of gross disinformation. Such conduct would constitute grave damage and injustice to the people of Sri Lanka and to those soldiers who fought professionally and sacrificed their lives in order to save other innocent lives from the LTTE stranglehold. Equally, it would also represent a body blow to the notion of the Freedom of Expression.
From the perspective of its Warrant, the Commission is also concerned that such acts would seriously prejudice and place major obstacles in the way of the on-going efforts, both national and international, to promote and consolidate a viable process of reconciliation, healing and reconstruction in Sri Lanka.
The Commission therefore recommends that the Government of Sri Lanka institute an independent investigation into this issue with a view to establishing the truth or otherwise of these allegations and take action in accordance with the laws of the land.
Equally, the Commission feels that arrangements should be made to ensure and facilitate the confidentiality and protection of information and informants. The Commission strongly urges all those concerned, especially the organizations that provided the original images and the broadcasting organization, to extend fullest cooperation by providing the necessary information to facilitate this work.
Implement Right to Information Bill, ensure Media Freedom
The Lessons Learnt and Reconciliation Commission has called upon the government to enact legislation to ensure the right to information and take all steps to prevent harassment and attacks on media personnel.
Commenting on Freedom of Expression and Right to Information, the Commission states: "The Commission was deeply disturbed by persistent reports concerning attacks on journalists and media institutions and killing of journalists and the fact that these incidents remain to be conclusively investigated and perpetrators brought to justice.
The Commission was also alarmed by the deplorable attack on the Editor of the Uthayan newspaper in Jaffna, which occurred while the Commission's sittings were still in progress. The Commission condemns this attack. Such actions clearly place great obstacles in the way of any reconciliation efforts. Any failure to investigate and prosecute offenders would undermine the process of reconciliation and the Rule of Law. Freedom of expression and right to information, which are universally, regarded as basic human rights play a pivotal role in any reconciliation process. It is therefore essential that media freedom be enhanced in keeping with democratic principles and relevant fundamental rights obligations, since any restrictions placed on media freedom would only contribute to an environment of distrust and fear within and among ethnic groups.
This would only prevent a constructive exchange of information and opinion placing severe constraints on the on-going reconciliation process. The Commission strongly recommends that:
a) All steps should be taken to prevent harassment and attacks on media personnel and institutions.
b) Action must be taken to impose deterrent punishment on such offences, and also priority should be given to the investigation, prosecution and disposal of such cases to build-up public confidence in the criminal justice system.
c) Past incidents of such illegal action should be properly investigated. The Commission observes with concern that a number of journalists and media institutions have been attacked in the recent past. Such offences erode the public confidence in the system of justice. Therefore, the Commission recommends that steps should be taken to expeditiously conclude investigations so that offenders are brought to book without delay.
d) The Government should ensure the freedom of movement of media personnel in the North and East, as it would help in the exchange of information contributing to the process of reconciliation.
Set up Independent Police Commission
The LLRC has also made a number of other significant recommendations with regard to a number of other aspects. Here are some highlights:
* Police Department be delinked from the institutions dealing with the armed forces which are responsible for the security of the state.
* An independent permanent Police Commission should be empowered to monitor the performance of the Police Service and ensure that all Police officers act independently and maintain a high degree of professional conduct.
* The time frame for legislation before the Supreme Court, in particular of urgent bills, is grossly inadequate. The Supreme Court is called upon to make a determination in respect of urgent bills within a period of 24 hours or on a date not later than three days as specified by His Excellency the President (Article 122(1) of the Constitution). Public intervention regarding proposed legislation is an integral part of a vibrant democracy. Therefore, the Commission recommends, that the Government and the Opposition make all endeavours to reach a consensus on an appropriate constitutional amendment, to provide for an adequate timeframe to challenge proposed legislation.
* A second chamber comprising Representatives from the Provinces is likely to generate a sense of confidence among the political leadership and among the people in the Provinces
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