23 May, 2022


A Welcome Step In The Right Direction

By Rajiva Wijesinha

Prof. Rajiva Wijesinha MP

Prof. Rajiva Wijesinha MP

It is an honour, Mr Chairman, to have been asked to speak on the Prescription (Special Provisions) Bill, which I am very happy to support.  It a necessary measure, and should have been introduced some years back. Ineed I recall six years ago, when I headed the Peace Secretariat, having a meeting with the Chair of the Law Commission about the need to introduce legislation of this sort, and being impressed because they too had already thought about this.

I had been unexpectedly drawn into public life from the rural pleasures of Sabaragamuwa University, but I thought it necessary to interpret my mandate widely, in the interests of peace and reconciliation. It seemed sensible then to also plan for the future. Though much was uncertain at the time, we had to hope that we could overcome terrorism, as indeed we successfully did a year or so later. But we also needed to eradicate the root causes of terrorism, which required, as the Secretary of Defence eloquently put it in those days, at a function at the Central Bank late in 2008, a political solution, which was not his area of concern.

Planning for the future then was of the essence, and I was pleased to find that the Law Commission had already thought of the problems the existing provisions regarding Prescription might cause. After all, it was manifestly unfair that those who had left their lands because of terrorism should have to lose these because others had occupied them for the period required to claim ownership. I recall being told that draft legislation was ready at the time, so it is sad that this lay forgotten for so long.

Or perhaps forgotten is the wrong word, for the Background Note we were helpfully given with regard to the Bill noted that the Law Commission had forwarded to the Ministry of Justice a daft amendment to the Prescription Ordinance way back in 2009. Unfortunately it has taken nearly five years to see the light of day, in the form of these Special Provisions, because of the delays that seem endemic in a system that is now on the verge of collapse. Though the reason for the delay is not mentioned, it may well have to do with the absence of any sense of urgency in the Legal Draughtsman’s Department, a phenomenon that also for instance killed the admirable efforts of the Ministry of Higher Education to expand opportunities for tertiary education. What the Note makes clear is the need to streamline the procedures we now follow with regard to legislation, and perhaps bring the Legal Draughtsman’s Department under a specific Ministry that is able to concentrate on important issues and act expeditiously as decided.

With regard to the present Bill, Mr Chairman, I must note that, at that discussion way back in 2008, we also talked of the claims of those who had occupied lands in the interim. Many had done so in good faith and had worked hard on those lands. While this should not take away from the rights of those driven from the land by terrorism, we also needed to think of these people, and not leave them destitute.

I brought up this question when we discussed this Bill at the Parliamentary Group, and was reassured when the Hon Minister of Justice responded that he recognized the need for making provision accordingly. I took his point that that could not be done through legislation, but required administrative action in the form of land grants. I could also understand why this should not be in terms of statutory compensation, since obviously we would be dealing not only with cases of indigence, but also those where individuals had contributed to the plight of those driven originally from the land. But I am glad that the need for land for those who would now be rendered landless, and in need, has been acknowledged, and I trust that suitable mechanisms will be set in place to prevent any form of injustice.

This again, Mr Chairman, should have been looked into some time back. One of the best Reports this country has seen in the last several years, the Lessons Learnt and Reconciliation Commission, has talked of the importance of land in the context of our hopes for Reconciliation, and in fact it had raised the issue prominently in the interim recommendations made in 2011.

Sadly the instructions of His Excellency the President that those recommendations should be implemented was flouted, perhaps in the unholy effort to avoid accountability issues, which has at last been thwarted by the welcome expansion recently of the mandate of the Disappearances Commission. As one who has consistently deplored any international investigation, with regard to a conflict in which by and large the Sri Lankan government and forces behaved much better than those who point fingers at us, I welcome recognition of our own obligation to conduct our own inquiry into possible aberrations. Only that would make crystal clear that the policies we had in place were in accordance with national and international law.

Our unfortunate obsession with dodging a few obligations led, way back in 2011, to avoidance of getting to grips with the interim recommendations concerning land. This was unfortunate, because when I was tasked with convening the Task Force on our Human Rights Action Plan, and went into the subject, I found nothing but cooperation, and solicitude for those who had suffered, from the Ministry of Lands and its admirable Secretary. But my Task Force had no powers to expedite action, which is why with great sadness I gave up my responsibilities, as I did the physical office I had set up as Adviser on Reconciliation, since there is no point in multiplying entities that are not effective, and certainly no point in spending money on them. I hoped then that the Hon Minister who had appointed me would point out to His Excellency that he needed a dedicated agency to take things forward, a Human Rights Ministry such as he himself had headed so effectively in the past, before that and that was abolished following the 2010 Election, and its functions handed over to the Ministry of External Affairs.

That was a tragic mistake, since it gave the impression that Human Rights was only for external consumption, whereas they need strengthening for the sake of all our people, a factor recognized when Cabinet adopted the Human Rights Action Plan. But implementing it effectively needs a dedicated Ministry, to be headed by the Minister who now convenes an Inter-Ministerial Committee on the subject which has no teeth and rarely meets. And if such a Ministry is not considered a good idea, I suggested alternatively that he could continue with his good work as Deputy, if it was thought essential for that vital portfolio to be administered at the highest level’

But just as we need a Ministry for Human Rights, what this belated most welcome Bill that we are voting on today makes clear is the crying need for a Ministry also of Reconciliation, to take a holistic view of what is now being done in bits and pieces. The many communications which I have sent following Divisional Secretariat Reconciliation meetings in the North and East, the replies I have received from the Line Ministries that do respond to letters, which indicate willingness to help but incapacity in the light of different authorities with overlapping responsibilities, the need to coordinate activities with regard to service delivery as well as human resources development, all point to the need for a Ministry dedicated to Reconciliation. A Senior Minister would fulfil the required responsibilities admirably, in line with the coordination functions mentioned when such Ministers were created, but which have not been developed.

Indeed such a Minister, with a commitment to consultation, could have intervened with regard to the worries you yourself expressed so eloquently, Mr Chairman, about this Bill, and which other members of both government and opposition have mentioned. At the very least, reducing the period of exception to 6 months, which you advocated and which I too suggested to the Ministry Secretary when the Consultative Committee met, would have helped assuage fears amongst those who will be disadvantaged by this Act. And it would make clear that government is balanced in its approach, and takes all concerns into account.

In this context, Mr Chairman, the question of land is vital. Even if not everyone can be satisfied fully, government must be sensitive to all concerns and do its best to deal with the worries of the vulnerable. As you are aware, in addition to prevailing uncertainties about the principles involved, there is much controversy in general over Land Powers. This should be resolved and indeed it can be resolved easily, but only if we implement the Constitutional provision about setting up a National Land Commission.

That Commission, with full participation by all stakeholders, including those from the Provinces most affected by disputes regarding lands and the principles governing its use and distribution, should develop a national Land Policy by consensus. As my colleague from the Gampaha District, the Hon Vasantha Senanayake, so admirably put it in his submissions to the Parliamentary Select Committee, ‘National land policy to be developed prior to passing of new legislation at any level with regard to land. The National Policy shall clearly set out the mechanism of central government monitoring the implementation of the policy and ensuring corrective action if the policy is breached.’

The present Bill, Mr Chairman, is a welcome step in the right direction. I hope it is the precursor to concerted action to settle uncertainties in the areas afflicted by conflict, to return to their rightful owners the bulk of lands of those disadvantaged by so many aspects of the conflict, to explain clearly why in some cases, I hope very few, land cannot be returned, and to provide adequate compensation in such cases, as also to those who will now be deprived of the right of prescription. Only through equitable settlement of such matters can we move forward, and strengthen agriculture, develop livestock rearing, promote value addition and agri-business initiatives, for all these require security of tenure and confidence in the rule of law.

*Speech of Prof Rajiva Wijesinha – At the debate on the Prescription (Special Provisions) Bill on August 7th 2014

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Latest comments

  • 12

    Rajiva Wijesinha,

    You talk big and lofty bills: What is the point in passing dozens of bills in parliament? Do you think you are a statesman? No a racist politician egged on by the racist clergy.

    How many laws are being flouted by your majesty and his government?

    We need a Prescription (Special Provisions) Bill to stop the madness of this regime! Enough of your talk of terrorism ad infinitum. It was not terrorism per se, it was war of liberation from persecution with both sides committing terrorism.

    The parliament is full of Sinhalese Buddhist racists and leeches sucking public funds.

    First, it is the full implementation of the existing laws, which is lacking now that matters, stupid.

  • 5

    “Mahinda can” says the latest slogan.

    I say, yes, Mahinda can and he has done it; murder as a young man, and committed mass murder of Tamils in Mullivaaikkaal in 2009.

    He showed what he can do; and what is in store for Muslims in Aluthgama.

    With the Asgiriya Mahanayake racist’s blessing, yes he can.

    Yes, he can do more killing of people of the island, and he will before he is removed like Saddam Husein!

  • 4

    Here we go again. Something sensible is proposed. The president issues instructions and the instructions are not followed. Rajiva is disappointed and shocked. As per previous articles in this series it has become apparent that none of the president instructions are followed. Which begs the question as to why he is running for a third term?

    What on earth are these articles collectively trying to tell us? That the president has no power? There is a deep state that has taken over the country and the president is a ‘Mugabe’ type figurehead?

    Must be disappointing for all those who are ‘strengthening the hands of the president’ to find that the presidents grip is feeble

  • 1

    …”””Law Commission had forwarded to the Ministry of Justice a daft amendment to the Prescription Ordinance way back in 2009…”””a providential slip, surely; or was it a daft amendment?.

  • 1

    What good is a “Bill” in a government which murders opponents,imprisons opposition candidates, allows its army to kill peaceful citizens,rape school girls and abducts dissenters in a white van.
    Whats the use of a “Bill” where the government uses mobs to disrupt meetings,terrorize minority ethnic and religious groups and set fire to press and media who writes against the governing thugs.

  • 2

    Dear Professor Rajiva,

    I understand your dilemma. If I may suggest something you could try.

    What I have observed is there is no “overseeing” of anything. Everyone does their own thing. When things go wrong adhoc decisions are made to plaster over the flaws.

    A classic example is the “monitoring MP” for external affairs. The minister is useless. So the exec appoints another guy to monitor the incompetence without addressing the underlying flaws.

    In addition, I don’t believe the exec puts any value into “fluffy” subjects like reconciliation.

    Although it seems things come together out of sheer luck there does appear to be come design to it all. Few key ministries such as education, economy and defense seems to pick up the lag for others.

    If you notice the relevant ministers belonging to these portfolios do not wait for others to order them. They simply go and do things they way think is right without any direction. I suspect this is what is missing with your mode of operation.

    Make reconciliation your pet project. Take ownership and do what you think needs to be done ignoring both praise and blame.

  • 1

    There has been much talk over the years about a “Tamil Homeland” in the North and East of Sri Lanka – this is shown in the various Eelam maps. This land claim was unreasonable, given the demand for more than two thirds of Sri Lanka’s coastline for less than 20 per cent of the population. It makes more sense to me so see the whole of Sri Lanka and the Homeland of Sri Lankan Tamils. This is in keeping with the fact that in ancient Sri Lanka there were Hindu Tamil temples and towns in the south as well as the north, east and west (consider the Tenavaram Temple Town in Dondra). My mother, who was born in Jaffna, spent most of her life in Colombo, where she went to school and university. The same is the case for many other Tamils.

    I am making this comment because there have been misguided efforts to boycott Sri Lanka, apparently on account its human rights record, which has been unfairly compared with Apartheid South Africa. This effort at boycotting Sri Lanka (which is bound to fail anyway) is the opposite of what I am supporting as a better option for Tamil people – buy up land in Sri Lanka and build beautiful buildings that celebrate the best of Tamil architecture and design, in which Tamil literature, dance and music can be showcased. Much better than arguing about a separate state.

    Of course, Sri Lanka is also the Homeland of the Sinhalese, of Sri Lankan Muslims, Sri Lankan Burghers and Sri Lankan Veddhas. All are free to invest in the future of the country.

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