By Jehan Perera –

Jehan Perera

The government is proceeding at speed on its course of legislative activism with regard to economic, reconciliation and security matters. Its ability to do so comes from its majority in parliament. Due to this majority in parliament won at the general elections of 2020, the government is in a position to get its way. However, the government’s legitimacy and moral right to rule and make such reforms has been in question after the economy was brought to its knees in 2021 by the misguided policies of the previous government, and government leaders had to resign from office or flee their homes. In the context of the second world war, the Soviet leader Josef Stalin was said to have asked how many divisions did the Pope have. The reality is that the power of the present government depends on its legal power, not moral power. The present tendencies nearly everywhere in the world is that the sword is mightier than the pen.

These days it seems that morality and power are often taken to be opposites, with morality grounded in the common good, and power located in self-interest. The government’s legal power to rule will remain unchallenged so long as elections are postponed as they have been or not held at all as quite often speculated. Among the new laws that the government is rushing through parliament are ones that will strengthen the coercive arms of the state and make it costly for people to protest against it. Heading this list of laws is the Anti-Terrorism Bill, which makes a wide range of actions, including media freedom and economic strike actions, liable to fall within the domain of terrorism. Not far behind are repressive laws such as the Online Safety Bill, which is being justified by government leaders as intended to protect women and children from intrusive social media, but which will impact on freedom of speech and expression on social media.

The case of another new law that has been gazetted and will be taken up in parliament in the coming weeks is the Truth, Unity and Reconciliation Commission. The objective of this institution would be to promote reconciliation. The participation of opposition political parties, especially the ethnic and religious minority parties is extremely important when it comes to reconciliation. Or else it is like clapping with one hand. It is also a matter for concern that the draft law with respect to the Truth, Unity and Reconciliation Commission (TURC) has been prepared and gazetted even before the submission of the report of the Presidential Commission of Inquiry to investigate the findings of preceding Commissions and Committees headed by Justice A H M D Nawaz.

Minimal Consultations 

In the synopsis of the Nawaz Commission report issued in February last year, the Commissioners referred to a Truth and Reconciliation Commission of Sri Lanka and stated that the contours of the commission would be set out in due course when the Final Report was submitted. The government’s urgency in rushing through with the law pertaining to the TURC, without even waiting for the Nawaz Commission to submit its report, and with only minimal consultation with opposition political parties and civil society suggests a motivation that goes beyond reconciliation. There seems to be a desire to obtain the support of the international community by producing the TURC law, even though it may not have the support from the aggrieved ethnic and religious minorities for whom it is meant.

This week the government will be taking up the ONUR bill for debate after which it will be enacted as law. The bill proposes to establish an Office for National Unity and Reconciliation which can play a role in coordinating all reconciliation matters taken up by the government. There are commendable objectives outlined in the ONUR bill, such as promoting national unity and peaceful coexistence, which require dialogue and negotiation among representatives of diverse communities in Sri Lanka, both in civil and political societies. Unfortunately, as in the case of the Truth, Unity and Reconciliation Commission (TURC) there has been little or no effort to engage in public discussion on it regarding its content or to educate the general public about the need for it.

There are three problem areas that need to be addressed in the ONUR bill. Appointments to the ONUR Board would be appointments by the Minister under whose purview the institution comes. The minister is empowered to recommend the appointment of 11 members who will have terms of 3 years, while the chairperson has no time limit, which is inadvisable. There is a need for a more multi-partisan method of appointments to ensure that those appointed represent the diversity of ethnic and religious groups and socio-cultural interests. It is reported that a committee stage amendment has been proposed for appointment of these members to be done by the Constitutional Council which is to be welcomed.

White Elephants 

ONUR is expected to play a central role in the national reconciliation process that brings together all the independent reconciliation mechanisms. Therefore, it would be advisable that appointments to the ONUR board should include ex-officio representatives from the Office of Missing Persons, Office of Reparations, NGO Secretariat and the Truth, Unity and Reconciliation Commission which is soon to be established. This will ensure that all the reconciliation institutions share a common vision and are informed of the work that is being done by each of them. There is also a need to ensure representation from civil society to ensure that the perspectives of affected communities and victims are considered and acted upon.

The role given to ONUR to be prescriptive vis a vis civil society by virtue of the power “to guide and facilitate peace and reconciliation programmes conducted by local organisations including community based organisations” is a third concern. This authority to monitor and review the work of civil society raises concerns about the prospect of government heavy-handedness in the context of the possible politicization for narrow and partisan purposes of national reconciliation policy and actions. The new law needs to be clear that the government will not direct civil society to follow its guidelines, but can “assist and facilitate” them to do so. National reconciliation cannot be enforced from the top down. It needs to be a voluntary process involving all ethnic and religious communities.

There is a need to draw civil society and elected political representatives into the discussion about the new institutions on reconciliation. Prior to the passage of the new laws, the government needs to sincerely engage with opposition political parties, particularly those representing minority ethnic and religious communities, as well as civil society, to establish a multi-partisan consensus, encompassing pluralistic values on the path to make this a true reconciliation process for national unity. Unless the new reconciliation institutions are based on consensus rather than set up by a majority vote in parliament, they will end up as being akin to white elephants, non-functional, adding burdens on the government’s finances and further eroding faith in the reconciliation process.