By Rajiva Wijesinha –

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 7^th 2014