By Austin Fernando
In recent times there had been vast discussion on returning the displaced. The Lessons Learnt and Reconciliation Commission (LLRC), media, Diaspora, diplomatic inquiries- especially from India- led these dialogues. When certain Tamil representatives gave evidence before the LLRC the internally displaced person’s (IDP’s) and refugees’ rights and plight became secondary to devolution, as if Kandiahs and Sundaris gave prominence to devolution than their lost children, spouses, houses etc. Whenever LLRC held sessions in the North and East the affected proved those politicians wrong by demanding return of their disappeared children and spouses and entry to their lands in High Security Zones (HSZs).
Restitution became such an important issue, the Indian Minister of External Affairs plans to visit the resettled areas and Secretary Nirupama Rao, the Indian High Commissioner, German Parliamentarians, United Nations (UN) officers, diplomats etc have visited the Provinces observing the status of restitution and resettlement. Concurrently, the Indian Minister Chidambaram reiterated President Rajapaksa’s promises of resettlement to Tamilnadu Chief Minister Karunanidhi. President Rajapaksa’s promises are not unfounded as the government has moved towards restitution guided by Minister Basil Rajapaksa.
Tamil politicians and Tamilnet demand ceasing of "state aided colonization in the North and East." It is given an ethnic twist by calling the process "Sinhalization" and "Sinhalacization" of the "homelands". Even the respected Cardinal Malcolm Ranjith re-orchestrated similar sentiment with non-venomous holy words, which earned him the wrath of Minister Keheliya Rambukwella who bluntly said that every inch of land belongs to all Sri Lankans and there are no separated areas; a truism. After defeating the "separatist war" when "homeland concepts" have been dashed to splinters, what else can one expect from the Government Media Spokesman?
Though the interim proposals of the LLRC are not known to me, the Commission would have submitted to the President restitution proposals in similar frame of mind as mine. In my evidence before the LLRC I emphasized on the processes for restitution, based on the Handbook on Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles).
The response of the Chairman to me was "I must on behalf of the Commission thank you for the wide canvas of views that you articulated and I think some of the views that you articulated on principles of housing and property restitution of refugees and displaced persons and reconciliation would be of immense value to the Commission in formulating our recommendations." I justifiably believe the LLRC would honour the Chairman’s utterances. Hence, I wish to summarily deal with those Principles as appearing relevant.
Realities of restitution / resettlement
There are some realities that should be reckoned in dealing with this subject.
If the Government of Sri Lanka (GOSL) wishes to be effective and reasonable in restitution/ resettlement, it must genuinely recognize that thousands of IDPs and refugees lived under inhuman conditions and they possess the right to voluntary return, in safety and dignity, to their original or former habitats.
Further, GOSL must recognize that in this process the rights of refugees and displaced should be respected and it need to undertake positive measures to ensure that their rights to housing, land and property restitution are guaranteed. In dealing with this there are many national and international institutions established to ensure the restitution rights of the affected for which the GOSL has concurred. Other than the multilateral obligations, bilateral agreements (e.g. Indian financial commitment for housing) have to be respected by the GOSL.
The GOSL should convince that the implementation of successful housing, land and property restitution programs is a key element of restorative justice, contributing to effectively deter future situations of displacement and building sustainable peace and can compensate loss of face on other alleged rights issues.
The should not forget that there had been previous measures and commitments made during disasters (e.g. Tsunami) and the current resource availability, which have to be compatible during post-conflict restitution.
These basic realities have to be honoured by the GOSL, other stakeholders and understood especially by those who expect heavy commitments from the GOSL for rehabilitating the IDPs and refugees.
Genuine reasons delaying restitution / resettlement
The situational analysis of displacement is clouded with past issues such as the creation of HSZs, potential for terrorist regrouping, tsunami rehabilitation experiences etc. Similarly, end of conflict and the LTTE smashed up, the affected and their spokespersons highlight lessened security threats and legal issues, requiring lawful restitution.
However, it is necessary to be practical and reasonable in dealing with HSZs. There were several communities displaced due to HSZs who will demand restitution of their properties and resettlement therein. They are:
(1) people who lived adjacent to the core HSZ areas (e.g. Palaly Air Port or KKS harbour);
(2) people whose properties were acquired (e.g. some properties near Palaly and Batticaloa Air Fields);
(3) houses "occupied forcibly without owner permission’ when the owners fled (e.g. near Chavakachcheri);
(4) other properties used by the security forces. The properties that were forcibly acquired by the LTTE in North and East are another focus area.
The (1) and (2) categories fall to the category of assets that cannot be quickly returned or ‘non-returnable’ to owners due to projected security concerns. Now with the LTTE fire-power wiped out, the GOSL can reassess the potential threats and decide on HSZs, as already done successfully to an extent, though the affected are dissatisfied.
For categories (3) and (4) it is important that releasing be examined not only by the Military, but by a tribunal making prompt realistic compensation, if the lands are un-returnable. However, the State’s need takes precedence, which fact should be understood by the affected. State too should not be obsessed with power and self-centred and act. Such behaviour invariably attracts unwarranted criticisms.
Some practical and legal difficulties faced by the affected are important for restitution and resettlement. Firstly, there is need to find documentary evidence of ownership of properties. The initiative planned in the East (Daily Mirror -November 13th) is a positive approach to overcome this problem. In case of the displaced Sinhalese in Jaffna it may be the age-old Lease / Rental Agreements. Secondly, due to Military and LTTE occupation the boundaries and landmarks have disappeared and hence shortage of surveyors to clear the confusion arises.
Thirdly, demining is an often quoted problem. Engaging rehabilitated former Tiger cadres experienced in demining may be considered to fast track demining, if acceptable. Fourthly, the recent decision to issue Death Certificates by the GOSL after a shorter period of disappearance may overcome another compensation problem. These require even changes to laws, procedures, institutional rearrangements etc because lending agencies, Local Authorities and regulatory bodies like the Urban Development Authority demand these to administer loans and approve plans. Hence, these are urgent priorities.
There are internationally accepted principles for restitution. Pinheiro Principles are one such. They deal with the optimum standards and hence could be adjusted as per situational demands. They have five major foci, as follows, which I explain, as ad hoc utterances by various authorities on restitution are frequently heard.
(a) The Right to Housing and Property Restitution
(b) Overarching Principles of Restitution
(c) The Right to Voluntary Return in Safety and Dignity
(d) Legal, Policy, Procedural and Institutional Implementation Mechanisms
(e) Role of the International Community, Including international Organizations
The Right to Housing and Property Restitution
Peneheiro Principles say "All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.
States shall demonstrably prioritize the right to restitution as the preferred remedy to displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution."
Whenever a disaster hit the country, GOSL has accepted the contents of Pinheiro Principles in some way. However, the sensitivity of the conflict has by its actions left room for the affected to question the government’s acceptability of the Principles. These actions were necessitated due to security concerns, which in turn are questioned due to wiping out of Tigers in 2009. However, to totally absolve any threat cannot be accepted so soon, as stated by the Ministry of Defence. This demands reconciliatory actions to build confidence between the citizens and GOSL.
Overarching Principles of Restitution
There are several principles stated in Peneheiro Principles, but some like The Right to Privacy and Respect for the Home, Right to Peaceful Enjoyment of Possessions and Right to Adequate Housing are skipped due to their lacking importance in our context. Other principles are briefly discussed here.
(a) The recognition of the Right to Non-Discrimination Principle on grounds of race, ethnicity, language etc and equality before the law are important in restitution. The complaint against GOSL, rightly or wrongly made by Tamil politicians, Diaspora, affected and pro-LTTE media is based on discrimination on ethnicity and race. For example, in November 2010 Tamilnet made six exposures on discrimination or favouritism on ethnic grounds regarding restitution, some insinuating State complicity, which may not be totally true, but even if partially true would send wrong signals. If Diaspora support is anticipated such reporting will bear negative consequences. It is heartening to note President Rajapaksa recently stating publicly (Adaderana November 15th) that there will be no ethnic discrimination in restitution. The need for an integrated approach to solve problems may still stick in such background.
(b) The Right to Equality between Men and Women- State has to ensure the equal rights of men and women to the enjoyment of housing, land and property restitution. This will be for return, inheritance, tenure rights and control of and access to housing, land and property. Recognition of joint ownership rights of both the male and female heads of the household as an explicit component of the restitution process is highlighted. Excepting the "control of and access to housing, land and property" in the HSZs there is not much serious problems submitted by the affected.
(c) The Right to be Protected from Displacement- Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence. During conflict too this right stands though difficult to adhere as Sri Lanka has experienced. There had been occasional questionable situations, (though not extensive) reported especially in Tamilnet. Hence, GOSL should incorporate protections against displacement into legislation/ systems, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or effective control.
The safety issues are minimized now though there were many complaints some time back during operations. However, Tamilnet has complained of forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary confiscation or expropriation of land as a "punitive measure" consequential to war. Mr. Ananda Sangaree has been at the forefront making written allegations on such to the President. The GOSL has responded with the explanation of exaggerations, possible LTTE threats of regrouping to justify its actions. Finding alternate solutions may be considered by the GOSL.
I may harp on this issue further as forced eviction and forced occupation of lands are issues bringing disrepute to the GoSL, providing ammunition to those questioning the credibility and the good name of the GoSL. I quote from Prohibition of Forced Evictions Commission on Human Rights Resolution: 2004/28, which affirmed:
(i) Forced eviction is contrary to laws that are in conformity with international human rights;
(ii) Urged governments to undertake immediate measures to eliminate forced eviction;
(iii) Urged governments to protect all who are currently threatened with forced eviction based upon effective participation, consultation and negotiation with the affected.
(iv) Recommended that all governments provide immediate restitution, compensation and/or appropriate and sufficient alternative accommodation or land to the forcibly evicted, following mutually satisfactory negotiations.
(v) Reminded all international financial, trade, development and other related agencies to take fully into account the contents of this resolution; and,
(vi) Requested the UN High Commissioner for Human Rights to persuade governments to comply with relevant international standards, to prevent planned forced evictions from taking place and to ensure the provision of restitution or just and fair compensation.
Going by these, it is possible to evict IDPs and refugees only by honouring the right for adequate housing within the above-mentioned conditions. If the government’s goal is within these parameters one cannot anticipate ‘forced evictions’. Nevertheless, the issue is whether such consultation, negotiation, participation, compensation etc are or could be operationalized in a yet unstable security situation, with lacking confidence, state’s authority being challenged through "Transitional Governments" and resource constraints. Hence, all stakeholders should explore methods of acceptable restitution to suit these eventualities.
(d) The Right to Freedom of Movement- Though this is observed in the broad overview between the districts, allegations are levelled against restrictions in certain areas. However, here too national security will be of major interest but relaxations in qualified areas have to be provided, at least in stages. Defence authorities have commenced such action but the affected are more anxious. If the end of war means replacement of LTTE combatants by soldiers it will be a static human security environment. GoSL’s security personnel legality will be the only differentiation.
However, the recent statement by GA Jaffna (though challenged) indicated that the status has fast changed, which is a favourable development. I believe, the demand seems to be for the principles governing the right to choose the residence, non-execution of arbitrary or unlawful forcing to remain in specified areas, or possible arbitrary forcing to depart from certain areas, controls on livelihoods, because security requirements take precedence. The complainants highlight consistency to international human rights, refugee and humanitarian law and related standards. However, one factor that is not adequately highlighted in defence of the GoSL when responding to complaints is the authority the state has to subject citizens to restrictions that are necessary to protect national security, public order, public health or morals or the rights and freedoms of others. These are issues that should be considered in a balanced manner by the GoSL, as well as by other political groups who should cooperate with the government.
Right to voluntary return
All refugees and displaced persons have the right to voluntarily return to their former homes, lands or places of habitual residence, in safety and dignity. This right cannot be abridged under conditions of state succession, nor can it be subject to arbitrary or unlawful time limitations. Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. They should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property. Unfortunately, all these are complaints from the North, especially with a partial political and ethnic twist, which makes exaggeration compulsory.
The safety factor in addition to return will depend on some issues like freedom of movement, non- recurrence of displacement and protection, non-discrimination etc. According to certain anti-government media these rights are violated by not permitting return and pressure brought to leave camps to suit the GoSL calendars and agendas. Rather than pressurizing in this manner, for both parties it is best that some dialogue takes place.
Dignity is not achieved by return alone. It should go hand in glove with freedom, economic rehabilitation, livelihood development, civil society activation etc, which should be promoted in the former conflict zone. The complaint is that instead of these, ’ has preceded. Special mention is quoted by critics regarding economic activities and livelihood activities, for which confidence- building measures should be promoted as 30 year old scars of war cannot be erased overnight. The contribution of politicians of both ends, clergy, genuine civilian interventions and media support should be highlighted as lubricants.
This is a focus area that covers most of the operational issues. It needs vast reinforcement too.
(a) National Procedures, Institutions and Mechanisms- States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims (including that of tenants and collective claimants). Everyone arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, free of charge, gender sensitively, permitting separated and unaccompanied children’s "best interests" are ensured and to timely receive quickly disposed determinations on claims.
Do the affected consider the existing procedures, institutions and mechanisms possessing these qualities? Rightly or wrongly, from LLRC evidence by Tamil civilians and politicians, it does not appear so. Even the affected Muslims await positive performance like Tamils.
Believing the manner (Sunday Times October 31st) reported the distribution of tractors by the ICRC and the quick resettlement of Sinhalese displaced in Navathkuli (Virakesari reports on November 13th / November 14th) do not confirm such confidence in the Tamil minds. GoSL should take all appropriate administrative, legislative and judicial measures, guidelines to support and facilitate the housing, land and property restitution process and confirm apolitical and impartial responses. It is extremely difficult but essential because the causes for the 30 year conflict were mainly due to biased political / developmental interventions. Programmes should comprise of adequate consultation and participation with the affected communities.
(b) Rights of Tenants, Secondary Occupants and other Non-Owners- Within restitution programmes states should recognize the rights of tenants and other legitimate occupants or users of housing, land and property. To the maximum extent, states should ensure that such persons return to and re-possess, use their housing, land and property similar to those possessing formal owner-rights. Minister Milroy Fernando who stated recently (Mulpituwa November 15th) that he believed that the Sinhalese displaced were only tenants in Jaffna, need not consider it a disqualification for restitution / resettlement under this principle. The difficulty is that international guidelines demand ensuring the safeguards of due process extended to secondary occupants without prejudice to the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question. However, this may make the displaced Sinhalese families from the North happy.
(c) Legislative Measures- International requirements are for recognition of an essential component of the rule of law and legislation to ensure the right to housing, land and property restitution, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. These should be studied, and with a long list of lawyer members in the LLRC this could be dealt with. There are several state organizations that could assist restitution, e.g. National Housing Development Authority, Housing Development Finance Corporation, State Mortgage Investment Bank. More organizations (e.g. Cooperative Rural Banks, Sanasa Banks) could be authorized legally for the specific purpose of restitution and resettlement in the conflict affected areas.
They should be directed to ensure through appropriate means to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution. States should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property. Minutely such incidents are reported in the Tamilnet. In order to minimize destruction and looting, GoSL should develop procedures to inventorize the contents of claimed housing, land and property within its restitution/ resettlement programmes and may even introduce state sponsored insurance schemes as a safeguard.
(d) Compensation- All refugees and IDPs have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when restitution is not factually possible (e.g. when housing, land and/or property is destroyed or not in existence, as determined by an independent, impartial tribunal) or when the affected party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of settlement provide for a combination of restitution and compensation.
Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice. Anyway, some spokespersons for the affected expect total replacement of assets after decades of devastation, but it must be noted that the GoSL is cash strapped not to abide by such demands immediately and this should be considered favourably by foreign donors too, who should maintain non-discriminatory compensation packages, to avoid criticisms of favouring.
The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity and should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.
They should share expertise on the development of national housing, land and property restitution policies and programmes and help ensure their compatibility with international tools for rights protection. They should cooperate and coordinate with GOSL authorities and maintain a balanced approach of support and give their resources and experiences to the GoSL to create an effective and efficient voluntary return of the affected.
What we observe in restitution / resettlement is the demand made from the GoSL for performance under threatening pressures for time, resources, amalgamated demands for instance, such as, security and threat perceptions of the military etc. While the GoSL authorities may not be perfect, admittedly spokespersons for the affected too are not. It is proved from the haste and uncompromising demands for restitution, resettlement and compensation. Striking a balance between the government authorities and the affected is the main issue. To suit internationally acclaimed standards exactly as described here is difficult. Nevertheless, adhering to them will be an easy way to avoid reduction of accumulated fault finding and to prove GoSL’s unbiased, ethical behaviour.
Here I have tried to selectively discuss important aspects of restitution in the Pineheiro Principles. Deeper study by the GoSL and representatives of the affected will be useful to strike this balance. I wish it happens and a professional job satisfying the GoSL, affected, civil society and internationals could be found. Empty rhetoric of wilful forced eviction that could bring criticism from the affected and the internationals coining human rights violations by such action should be avoided as the country has to move towards reconciliation, and not hatred.
This cannot be achieved by such understanding by the GoSL alone. The affected and spokespersons should understand the difficulties the government faces and hence tolerance and compromise are the most appreciated qualities to strike this golden balance. LLRC is a good tool to recommend such consensual approach and it is up to the GoSL to address restitution / resettlement in a legal, professional and reasonable manner.
(The Writer is a former Defence Secretary)