A HISTORICAL PERSPECTIVE OF COMPENSATING FOR LOSS CAUSED DUE TO CONFLICTS, IN SRI LANKA.
The concept of reparations or granting compensation for loss caused to due to conflict situations, is not a recent phenomenon to Sri Lanka.
In 1983, the first statutory intervention was recognized in the aftermath of the incidents of July that year, when the Government introduced a mechanism to revive businesses that were affected. The Rehabilitation of Affected Property and Industries Authority (REPIA) was established in terms of Emergency Regulations No. 01 of 1983, made under Section 5 of the Public Security Ordinance and was tasked with providing compensation to and assisting in the revival of businesses and to award compensation for property damage, and provide loan schemes for those who required livelihood assistance. Compensation awarded to persons injured or killed were made with the approval of Cabinet or upon requests made by Divisional Secretariats. The REPIA was a temporary mechanism set up under Emergency Regulations and was succeeded a few years later by the more permanent Government Institution established by an Act of Parliament - the Rehabilitation of Persons, Properties and Industries Authority Act No. 19 of 1987 (“REPPIA”).
The REPPIA was empowered to assist in the rehabilitation of persons physically affected by riots or civil commotions, and to compensate owners of property affected by such incidents and to assist in repairing and the restoration of such property. REPPIA sought and obtained the approval of Cabinet for specific compensation and loan schemes.
Government continued to implement special relief packages to deal with issues of victims of the ethnic conflict. Several circulars were issued from 1987 setting out the terms and conditions on which compensation and monetary and other relief should be granted to victims. Outside of the incidents that took place during the course of the ethnic conflict in the North & East, there were other sporadic incidents that were triggered due to communal disharmony. Specific relief packages were approved by the Cabinet of Ministers in respect of incidents of violence that occurred in Beruwala (2006 and 2014), Aluthgama (2014), Ginthota (2017), Ampara (2018), Digana and Teldeniya, ( 2018), and the most recent incident of the Easter Sunday Bomb attack (April 2019) and incidents in its aftermath (May 2019).
The internationally accepted regime for transitional justice for countries that had faced periods of conflict which saw human rights abuses, was taking new meaning as it evolved in response to global events. Transitional Justice was recognized, in essence, as encompassing the many ways in which these countries sought to address human rights violations that could not be responded to in a meaningful way, through the normal justice system. Simply put, a commitment to transitional justice was a commitment to deal with the past.
The principle of granting reparations, adapted to conform to internationally accepted norms within the transitional justice regime, was introduced by the enactment of a new statute in 2018. The principle of Reparations which expanded on the policy of granting compensation which had been followed by successive Governments had previously been affirmed in the UN Human Rights Council Resolution 30/1 on Sri Lanka, adopted in October 2015 and had been reported on by the “Consultation Task Force on Reconciliation Mechanisms” which had been appointed in January 2016 to seek the views and comments of the public on the proposed mechanisms for transitional justice and reconciliation referred to in the said Resolution.
The Office for Reparations Act No. 34 of, 2018, (“OR Act”) was enacted and came into operation on October 22nd, 2018. This was the second statute adopted by Government to deal with the regime of compensation or reparations to victims of violence. The OR Act went beyond merely providing for monetary relief measures. It articulated the basis for granting relief and the macro level expectations. In its preamble it stated that the Constitution of Sri Lanka recognizes the inherent dignity and the equal and inalienable human rights of all Sri Lankans and recognized the obligation of the State to respect, secure and advance these rights. It also stated that a comprehensive reparations scheme which is anchored in the rights of all Sri Lankans to an effective remedy will contribute to the promotion of reconciliation for the well-being, and security of all Sri Lankans including future generations. There was thus an acceptance that reparations was designed not only as compensatory payments to the victims but was also a mechanism that contributed to the broader objective of reconciliation as a means of securing the well-being and security of all of our peoples. Hence, the new Act articulated an ambitious higher objective. In introducing the Bill, the then Prime Minister stated that “the Office for Reparations Bill is one of those that we have proposed to ensure reconciliation in this country.”
The OR Act provides for the grant of reparations to persons who have suffered loss (ie. personal injury, death and damage to property) arising from the armed conflict that took place in the Northern and Eastern Provinces or its aftermath, or due to political unrest or civil disturbances or due to the enforced disappearances. It establishes a regime to deal with past as well as future incidents.
The new Office for Reparations (“OR”) was made functional in April 2019 with the appointment by the President of five Members on the recommendation of the Constitutional Council. The OR Act repealed the REPPIA Act of 1987 and abolished REPPIA.
Where the REPPIA Act provided for the grant of monetary compensation to individuals, the OR Act provides for relief that goes beyond that. It deals with assisting people in many other ways, including through psycho-social support and through recommendations to the appropriate authorities to provide communities with facilities such as schools or roads, or access to market places, as well as providing specialized policies on public education, and on children, youth, women and persons with disabilities. It recognizes the need to respond to real issues faced by aggrieved persons by assessing their level of need, and by providing meaningful relief that will help aggrieved persons rebuild and restore their lives. It provides for individual and collective reparations.
Significantly, the OR Act provides for a statutory imperative to be guided by the principles of non-discrimination, victim-centrality and fairness, and with due consideration to the special needs of women, children and persons with disabilities. There is an acceptance that providing for meaningful relief in this manner will contribute to reconciliation among our people.