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Transcript- Godfrey Gunatilleke

 12 August 2010

Dr Godfrey Gunatilleke Silva: Dr Gunatilake, first I wish to outline the procedure.  You are entitled to give evidence in public or if you so choose you can give evidence in camera.  That is a matter that is left to you.  If you give evidence in camera that evidence will be only known to the Commissioners, but otherwise the general rule is that evidence be given in public and at the end of your presentations the Commissioners are entitled to ask questions.  Apart from the Commissioners nobody else can ask any questions.  No member of the public can ask any questions at any stage.  At any stage, for example, if you feel that in response to questions asked by us that you need to give evidence in camera, you can make that request. 

Gunatilake:Let me first sincerely thank the Chairman and the Members of the Commission for giving me this opportunity to make these submissions.  I must say right at the outset that I am making these submission as an observer, as a person who has been involved in civil society activity – for a long time monitoring, studying and observing the peace process from the mid-‘70s.   But during the particular period I was a member of the National Advisory Council on Peace and Reconciliation, which President Chandrika Cumaratunga established at the time, and I also served as a member and Chairman of the Human Rights Commission.  In all those positions I had contact with both individuals and also some of the members of the LTTE, and what I say here today is really based on lot of information and knowledge gathered during that period.  When I asked myself how I should approach my task I felt that I should reflect a little on the title of the Commission.  The title gave me a clue because it is somewhat unique and unusual – the title is “Lessons Learnt and Reconciliation” and in this sense I feel that the Commission has somewhat a unique character.  It is distinguished  from Commissions which focused mainly on what went wrong and who is responsible for it.  Of course your items 01 and 02 deal with it.  But then the emphasis is on how we can learn from the past and how a full knowledge of the past can guarantee a better future.  So it is the past dealt with in relation to what is required to promote national unity and reconciliation among all communities. 

 Having reflected on that I asked myself how do you deal with acts of violation and violations of human rights that occur during a time of civil strife where there is a breakdown of law and order, and the normal norms and conventions don’t seem to apply anymore and all actors and policy makers are in extreme moral dilemmas. I think in a situation like that the real issue is how one can find the right balance between retributive justice and restorative justice. What is the balance.  I think the balance between identifying perpetrators of crimes and meting out justice on the one hand and promoting a healing process of forgiveness and reconciliation which leads to peaceful co-existence on the other, and that is I think a very difficult and very challenging task. Take the examples of the South African Commission.  It is a societal process of atonement.  But then every internal conflict is unique.  We can’t draw very much from the international comparisons.  There is no template mechanically which you can apply.  Conditions in Sri Lanka were so unique and I am hopeful that really we can, out of that unique experience, develop our own model of justice for atonement to reconciliation.  It is a very formidable challenge that is faced by the Commission.

I thought I would deal with specific issues that are covered in your Items 1 to 5 to the extent that they are relevant for your deliberations. I tried to structure my presentation under the four heads.  I will answer particularly the question that you are particularly concerned with – the failure of the CFA – and then go on to questions of responsibility. I would like to make a brief presentation on restitution because you have used the word “methodology” and that I think is very appropriate because you are dealing with a mass of victims who were subjected to such extreme forms of suffering for which you do not have a precedent to guide you.  For others you have preparation, other types of compensation to give them.  I think there is a challenge here as well.  I would like to deal with your last item which is of course open-ended.  I do not know, you have a formidable task of dealing with the whole process of national unity and reconciliation.  But I would like to flag here just a few issues for consideration.  About this CFA itself I would like to again look at this at two levels here.  You are looking at the breakdown – who was responsible for the failure of the CFA?  But you have had expert submission yesterday which the press reported.   You are looking at different phases.  But I would like to look at it at two levels and cast the issue of responsibility on a much wider framework and then what were the underlying reasons for the failure of the CFA, and events which led to its breakdown. I think it falls into two clear phases.  You go on till 2005 and from 2005 after the April Geneva Conference you immediately get into a state of military activity escalation and so on.  But if you ask what were the underlying reasons, I would submit that the CFA was flawed from its very inception.  I can’t find a CFA of the same type among the international CFAs.  I have a whole list which I have prepared.  The Commission might be probably interested in looking at them.  But you will find that there is a structure in the CFA and that structure is essentially a structure which leads quickly to the negotiations of co-issues on the permanent settlement.  The CFA is observed as a step in that direction.  But I find that that is not so in the CFA  and we in civil society  and particularly political analysts made strong critiques that time, because in a sense you put cart before the horse, you put normalcy before peace and peace itself was given a second place –  political settlement, the negotiations of core issues were pushed aside and one focused on the restoration of some normal conditions.  When you did that the Government went into a series of problems and dilemmas. The whole country was in a sense being separated and control of the areas under the LTTE was regularized.

There was a question of status – the equality of status between a sovereign State and an armed group and that was very ambiguous all along.  The Washington Conference said because of the hard position that the USA took, no participation by the LTTE, because they are not an equal partner and that created a big problem and the LTTE went out, more or less withdrew from the negotiating process on that at that time and you find that those are rooted in the ambiguities in the CFA itself and much more the SLMM was a totally impotent organ.  It couldn’t really exercise any power of compliance and that was also really because the LTTE remained in an insulated area where they were independent.  You couldn’t go in there, make  investigations.  I found this when I was Chairman of the Human Rights Commission that violations  were committed in the areas under government control by persons who went back into the LTTE controlled territory.  They could not be pursued.  They could not come.  So there was no justice, no normal organs of law and order that prevailed.  We did not confront that. Some of them at that stage said why don’t we have a memorandum of understanding on human rights, so that then you could bind the LTTE to certain norms of human rights and through that try to work out your negotiations?

There were some UN representatives that came and met me, Radhika Coomarswamy who succeeded me made recommendations on an MOU. You got the feeling that the two parties did not want to enter into that area, and you got the feeling that that would have rocked the boat in some way because you are keeping a very fragile ceasefire in operation. It was inevitable the breakdown was round the corner, it had to come. What I would say is that there was an inherent weakness in the CFA itself, and if you want to ask for responsibility for the breakdown you must also take those things into consideration.  Then when you look and see why did this happen, the two parties you will find and at that time we were in close contact some of the Ministers and so on, the two parties were also happy in putting the political solution in the back burner because the LTTE did not want to bind themselves to a permanent solution they preferred to take control of the areas in which they were, consolidate themselves and a de facto state. That was preferable to a normal solution where they would have to decommission, there would have to be disarmament, there would have to be democracy in the North and East so they pushed it a side and the government had a major problem and you would remember the strategy which was one step at a time, the distance, not for me the distance seem, so it was at a one step at a time strategy because the government at the time was fragile itself and there was no question, here was a unique opportunity to get a national consensus on the ethnic issue, there was a President from one party and the Prime Minister from another and that co-habitation provided a unique opportunity that’s how we in civil society thought to really forge a national consensus on the ethnic issue but that did not happen and because it did not happen the political solution could not be clearly offered and I think that dogged us right along so here is a ceasefire where both parties were not fully committed to negotiate for peace on the permanent solution and so you got a major breakdown.

Now what was the direct reasons and for that I am sure you would get expert evidence on and for us as observers it starts from 2005 and if you look at the list of the CFA violations of the LTTE, the CFA violations prior to 2005 was very heavily weighted against the LTTE, you are given figures of about 3700 LTTE violations against 172  of course there were a few atrocities but they were largely violations that occurred within LTTE territory like, conscription, abductions, some killings like the killing of the Millennium City deep penetration unit those were there. But after 2005 there was essentially a declaration of war, there was the assassination of Lakshman Kadiragamar, you have the killings of the naval personnel who were unarmed, the Kebbitgollowa massacre, attempted assassination of the Army Commander, the killing of Brigadier Kulatunga all of that, then the attack on the Southern Province Naval Base was a clearly indication that the LTTE was not prepared for anything else and I can’t seen any alternative but the withdrawal from the CFA so those are decisions that could not be otherwise.  What is the other scenario if we who are strongly committed to peace at any cost ask what is the other scenario, the other scenario would have been to try and drag on the CFA , allow the LTTE to continue and bring pressure on the international community to force the LTTE to come to the negotiating table but I think by that time there was a clear realization that the agenda of the LTTE was not for a peaceful negotiated settlement within a democratic united Sri Lanka and that decision was a political judgment and then you got from  2005 this escalation in 2008,the withdrawal from the CFA , but the ground reality was that the CFA was no operative in the Eastern Province, after Mavillaru  you had the full scale military operation but did not lead still to the outright withdrawal from the CFA it took after that for the withdrawal. I am unable to say very much of the events in the second phase that lead to the defeat of the LTTE, but I would like to draw attention to one or two things. I think one of the great tasks the Commission could fulfill is if the public of this country and a full transparent account of all what transpired during that period. I think the government owes it to the public to know what precisely happened.   Let me try to deal with those issues as far as I could in a very limited way.  What strikes me and we were at that time very active, we continued as a civil society committee from the time we were appointed in the National Advisory Council to work on these issues. Many of us like, Jayantha Dhanapala, Manori Mutthatuwegama, Jesima Ismail met regularly and when this appalling situation of the human shield came up we felt that as civil society workers we can’t remain silent, but of course we were helpless because that was a military situation, but we went to various persons, we went and met the UNHCR, ICRC, we met the American Ambassador, a number of Ambassador, some Ministers and we asked what does this mean.

It seems to me that you had a situation which was an extreme one which went beyond conventional war and you had human being beings used as a human shield by group which was ruthless and which had no restraints in regard to its fighting. How do you deal with that, for us at that time we felt that the most important thing is looking at the citizens who were trapped and could that be attended to. Unfortunately, in the whole discussion that human rights activitist got deflected from this horror of this human shield to some of the events that occurred later. It was deflected to the actions of the military, that I think is a major problem in dealing with this situation. Even today internationally there is very little which expresses outrage and horror at the method of fighting that was adopted and the unconventional way in which the war was fought. To my mind that poses extreme moral dilemmas, people in the battle field, dealing with an enemy who is using a human shield and suicide bombers have to take decisions right there and I am not saying that one should condone any excesses but I think the international community should put that within that frame and examine what were the options available and who were in fact primarily responsible for that situation. That didn’t  happen internationally and I think that is partly due to the fact that we are not pro-actively engaged with the international community.

The international community I feel must share the responsibility for what happened not only during the period it did happen but for all that happened which enabled the LTTE to grow as a terrorist organization and come to that position. I mean this applies to India, to other European countries that harboured the LTTE. We need to ask what happened during that period could greater international pressure be brought on the LTTE itself, my own impression is that there was an opportunity where once could have brought greater pressure even to the extent that other august bodies like the Security Council could have taken note of that because I don’t think there is a precedent globally of that same use of human shields on that scale in an internal conflict and it is a warning to the international community. So this part of it has struck me as I was reflecting on the events that led up to the defeat of the LTTE.  I also think that we need to define that whole area of responsibility because unfortunately we have got cornered as a country and accused. We also have the right to take moral high ground as to what happened to us as a country in the whole process by which really terrorism grew and even the actions that were taken when the elements outside were coming out in support of the LTTE without really looking at that dilemma of the human shield and without coming out strongly for the release of the citizens. I asked myself what was the role of the international community in all of that, mainly as a Sri Lankan, as a human being and as a citizen of the globe. So I would say that one of the things that we need to do in all of this is to look at the role of the international agencies and groups and how that led to the dilemmas that we are faced.

With regard to the issue of restitution, it seems to me that the Sri Lankan government have being in the field of restitution for a long time, we handled some of the conflicts with an unusual maturity and understanding, the best example is the 1971 insurrection, there we maintained the due process of the law. I will come to that later. But restitution itself has many schemes, whether it is compensation for death, re-settlement, for rehabilitation and all of this will merely have to be strengthened  and improved, but it seems to me that really one has to approach the question of restitution in this particular instance somewhat differently much more comprehensively, look at restitution not only in terms of re-settlement or rehabilitation but in terms of the political, social, economic and psycho social rehabilitation so that we follow them through not just re-settlement, follow them through until they are restored to full citizenship, they become participatory, their livelihoods are there and now that is restitution to restore them to that position. I don’t know what one can do in that regard which we are not already doing, but it struck me that one may have to think in terms of some mechanisms, some agencies which takes that responsibility on itself and we have examples of all types of development authorities, the Southern Development Authority, the Mahaweli Development Authority, what happened there was of course largely centralized and bureaucratic but it gives us an idea of comprehensive integrated development, human development of the region and whether the restitution requires some intervention broad based to that kind is something that one might  examine .

Let me get to some of the issues relating to item 5 , I find that the Commission is in the rather unenviable position in that after taking the very specific issues you have come to an open ended issue which means that the whole process of reconciliation and peace and that goes much beyond one would be examining under the earlier terms of reference , national unity and peace so that it may be necessary to look at this selectively and ask what are those issues which are in a sense are at the heart of the conflict which brought so much violence and suffering and how we could deal with that. I said that when we dealt with the CFA there was a inclination to evade the central question, the question of political settlements with peace, and leave the roots of the conflict without being addressed. Now  I think we are not in a different position today, there has been a military victory, but the human and the political roots of the conflict still remain.  We were unable to forge a national consensus at the time of the CFA, we need to forge that national consensus today and unless we forge that national consensus and develop a Sri Lankan identity which all communities can belong, to which all communities can owe allegiance, I don’t think we would be still managing the conflict situation and dealing with the problems that arise and for that all manner of things I would say, social, political, economic. The area is so complex and I believe a great deal of time would have to be spent if one were to get the meaningful answers to that, but to our mind, I am speaking on behalf of small civil society groups that made representations to the all party conference on the political issue.

We tried to cast the problem in a way that one does not get bogged down in the categories of Federal and Unitary, but what we said was that the fundamental principle underlying democracy is the sovereignty of the people and it is the way in which government structures enable people to exercise their sovereignty from the bottom upwards that makes up for democracy. Now in that proposal of ours we quoted the South African Constitution where there were three tiers of government, the local, provincial and the national and we said if you go with the principle of subsidiarity and ask what are the powers that should be given  to the primary unit of devolution which would enable  them to be self governing in the sense that political analyst use that they can manage their own affairs, what are the powers, what is the scope of that, then you come up with a unit which provides people with power and makes government accountable to them. I think the conflict can be solved only if you have a full system of accountability. The government which has structures of accountability which make rulers accountable to the people. Now if one has a structure of that kind really it is my conviction that you can work out the powers of other two tiers the national and provincial on the principle of subsidiarity that would satisfy all ethnic groups and would help us move out of the debate between federal and unitary. Now when it comes to the economic, I think we already have an opportunity there and we are trying to make use of it but we had for instance the World Bank release of the very interesting document economic geography of Sri Lanka where attention was drawn to the large regional development. Now if you want to solve the conflict you must have a rapid equitable process of economic development and I stress equitable because it has to be a process of economic development that distributes development equitably across regions and across ethnic communities. The World Bank says something very interesting, it says that we have been remarkably successful in leveling social welfare and that we have laid the foundations for such a process. Let us build on that. I feel that equitable development can come  only if you have structures of governance of the kind I suggested where people have the full control of the accountability of government. When it comes to the larger issues, the societal issues, reconciliation and peace is not only the question of institutions, it is a question of people and civil society has a major role to play. My conviction is also that the four religions to which Sri Lanka is being held has a major role to play. In fact it is a unique asset to Sri Lanka that was able to create an environment of peaceful co-existence for the religions while there was a major conflict between the ethnic groups. It remained immune to that though there were a few eruptions though not connected to the ethnic conflict.  In fact the four religions acted together very often to mediate and there you have resource and the co values of equality, humanity, justice and Dr. Weeramantry on his very valuable work on this has brought out the link between the religious and the secular how these are the moral foundations for all this secular discourse on human rights but we have a very unique example here and we probably can give a message to the world because a dialogue of that kind which strengthens the moral foundations of all the secular legal structures is available to us and we can develop that to a great extent.

Q & A

Paliahakkara: Thank you Mr. Chairman, Thank you Dr.. Gunatailleke, you gave some valuable insights and food for thought. I just want to ask you to elaborate on the interesting thesis that you put forward since our mandate also covers certain issues on humanitarian law etc. in the context of the military activity.  You did say that the problems associated with humanitarian law, if any, the root cause of that was the human shield situation that was  created by the LTTE towards the end of the operation and an unprecedented situation in the conflict throughout the history specially the current state and no state actor conflict situations and it is proliferating world wide now. In that situation let’s say the allegations and accusations that were leveled, you used the word deflected towards the military activity whereas the root cause of that was the human shield situation otherwise it was I presume a well developed military activity. So in that situation you did say perhaps the international community could have done much more to alleviate that situation and perhaps get the LTTE to provide a solution by resolving that human shield situation. What do you think the international community could have done at that point, at that point of course there was a similar situation in Gaza around that time, there was a Security Council Resolution asking that operation be stopped. There was no such pronouncement, which means that  the actions of the military could have continued to resolve the human shield situation which it did and it happened. But the interesting thing is that much more could have been done to alleviate human suffering by prevailing upon the LTTE to resolve the root cause of the situation. In your view what more could have been done from the international perspective.

Gunatilleke:  I didn’t see a joint statement on that by the international community. Here was a leader of a guerilla movement doing this to a large mass of human beings. He was not threatened with war crimes or being brought before tribunal. I think there could have been a much more effective statement by the international community on that.  I don’t know whether Sri Lanka is not in a position to take moral high ground but it hasn’t take the moral high ground on that.

Perera:  May I also join my colleague Mr. Gunatailleke in thanking you most sincerely for your presence here this morning. You very interestingly approached this whole issue of failure from a conceptual perspective . My question again is following the question from my colleague the human shield issue. Do you think the failure of the international community to come out more strongly on that flows from still a pre-occupation from the traditional humanitarian law perspective from looking at the state actor although there is increasing attention being paid to acts of non state actors.

Gunatailleke:    I felt that even earlier in the mid 70-s the human rights activist and reports were looking at state actors and they almost took the position that it was not for them to comment on the non state actors because the state actors have made certain commitments and undertakings and undertaken certain obligations and therefore they would address that.

Perera: Although much more water has flown then and there is increasing attention to acts of individuals and non state actors but still the sense I get is that the international community was not prepared to step outside the traditional doman.

Gunatailleke: I don’t know and this is a statement that I made very hesitatingly, but in answer to your question, I think the reasons was mainly political and I think it’s a mixture of reasons, to some extent the LTTE was a project of the international community within the human rights framework against a state which was discriminating against a minority and I remember the BBC correspondent at that time interviewing me and he said you would find a re-enactment of the Jewish problem . You will have a Diaspora who would want a homeland and they will power in the country to which they go like the Jewish community. This of course is a personal interpretation but put that into that context you had strong lobbies in developed countries who had political clout who exposed Sri Lanka, and we are also responsible for creating that, the 83 incidents and so on.  So that was the actual  situation and I think that was there and the second was that politically, I don’t know why they did not come together on that issue, for them it was not a major political issue in their own constituencies except,  the human shield was not, but the fact that there was a Tamil community which was under siege, who was responsible was not the question but something had to be done to save them. 

Perera: If that was so, was there anything the government could have done diplomatically, or was their a failure of diplomacy in that situation ?

Gunatilleke:    It is very difficult to make a judgment on that because I feel that in a situation of war where everyone was involved in what was happening there may not have been space to reflect on what might have been done but I think the government did I think at that stage appeal against the human shield, I think they did that. Maybe it could have been orchestrated better and brought to the attention of the General Assembly . My feelings is that when you look at those situations and actions that were taken on hindsight we can say that certain things could have been done but gripped with all those problems , I take a moderate view that we must be more indulgent on those small failures. But in answer to your question I would like to say something else that is when we were discussing this after the Eastern Province victory of the Army , we had before us a general assessment which said  that civilian casualties were low and the international media or nobody else said anything, they said yes,  except probably some pro LTTE group, they said the whole of the eastern province went through this military operation remarkably low civilian casualties. Then we were also told that right up to the end the whole military operation was not resulting in high casualties, it was only after the human shields and people got concentrated in that area without food and medical, then the question came up.  So one is inclined to believe that along we have been able to develop a certain code of conduct for the military which was able to show restraint and respect for civilian life in the way they conducted the operation.

Paliahakkara: The Security Council President I believe issued a statement on 19th April particularly addressing the human shield situation saying that the quickest way to end this conflict is for the LTTE to immediately disarm and lay down weapons and let these people go. But, of course the LTTE does not listen to such thing. So my question is what more could have been done in terms as you said of war crimes or sanctions etc. What in your view should be the immediate short term measures of reconciliation that the government, civil society and the people can envisage at this point.

Gunatilleke:  I think we have to think concurrently two courses of action, the people who have been effected, my institute has working in the Eastern Province,  Batticaloa after the war and the impression we get is that the people are deeply concerned about their immediate needs and conditions so the development issue is most important and that’s why I said it is not only a development issue it is a participatory development issue. We need to put in full place the structures. Don’t allow exploiters  to hijack the programme . I am a little cynical about the political process at the national level and even at the national level. I do believe that really these political processes lead to an aggregation of power to the hands of an elite  and unless you have structures which make them accountable to the people through  these participatory structures they behave like elites and their sole concern is return of power. So essentially I would say strengthen the bottom give them participation in their own rehabilitation. Secondly I would think the resolution of the national issue, a clear statement, we hear all kinds of statements, 13th amendment, 13th amendment plus and that can become a source of cynicism and frustration. I think that it is important to forge a consensus and come out with a clear set of proposal which can be put into a white paper and people could no it even before you make some major constitutional changes. That can come as an interim thing to satisfy the people that are serious of looking at the roots of the conflict.

Q: Thank you Mr. Gunatilleke for being here. Your comments have been very illuminating. I have a few questions especially I think  as a person who has been the head of the Human Rights Commission as well as one of the major think tank research institutes in this country you have been. You talked about the responsibility of the international community whether they failed in the instance of human shields. Could it be that, I am doubtful, so I am asking the Human Rights Law and the various definitions have generally being developed since mostly the second world war are focused on state actors because the traditional conflicts have been initiated or even perpetrated by state actors so whereas we have this modern experience of  illegitimate violence being committed by non state actors so you know traditionally in law there is a definition between legitimate and illegitimate violence so could it be the reason they are focusing simply on the state actor in this case rather than the non state actor who perpetrated or initiated the major violence by keeping the humans as shields.

Gunatailleke: In a process where you want to hold people accountable, you are dealing with a state actor who has ratified treaties, obligations so you have a system of accountability and you can act quickly. In the case of a non state actor you don’t have that system and we have still not developed that system and in fact that is a failure of the international system and it is because of that it tends to always happen that you quickly deal with the person who is immediately accountable and who you can hold to account rather than find the difficult ways in which you can design structures to hold the other party accountable the non state actor. We don’t have structures to make the non state actor accountable.

Hangawatte:  I have had discussion with some who have done a lot of research on the Israeli-Arab situation. They raised these questions as well here in the modern states we have states who have a major responsibility to protect its citizens , security of the citizens and if non state actors threaten that most fundamental right which is the right to security before any thing else even St. Thomas, Aquinas  security is the number one. At that stage when a state takes action which it deems are the best in the situation to protect the citizens security which is the fundamental right which may of course lead to violations of some other rights, should that be considered or may be our international concepts or treaties or definitions, should they be changed to take into account this most fundamental right as opposed to certain human rights not to say that human rights are secondary to others , I am not saying that, but we should have some kind which should be accorded importance.

 Gunatilleke: In all those cases you are talking off seem to some sort of trade off between human rights and security. The US is facing  that today and you have a large discourse on how one can try to find a balance. I think if one holds firmly to the view that human rights must be protected and that whatever is lost temporarily for purpose of security must be quickly restored then I think you can sort out that problem. It is like the emergency regulations that has to come to the Parliament every month to be ratified so that people know there is a delegation of rights and they are watching, they are monitoring, and really it is excessive you can take action.  It is an interesting issue that you raised and I liked to put it to the Commission, I find that Sri Lanka has this experience of having been able to integrate most of these dissident groups into the main stream. I mean we brought the JVP in 1971, then we brought the Tamil Militant Groups, we brought the LTTE fractions and I don’t think we can easily get an example which has this pragmatic capacity to forgive, forget. How are we to look at that. It seems as though there is a peculiar Sri Lankan capacity and it is important to develop that and at the same time how do we really maintain the rule of law, how do we prevent this becoming a culture of impunity because if you forgive everything, I mean you can do this if there is true penitence like the South African case , that’s a challenge for reconciliation and I don’t know the answers but it seems to me that is a peculiar situation in Sri Lanka.

Hangawatte: I think you find examples as well elsewhere, for example in the day to day language people use the phrase law and order as if  these two concepts go hand in hand which obviously they are not sometime you might have to breach order in order to maintain law and sometimes you might have to breach order to maintain law, so having said that, I want to ask you about restoration of justice which you mentioned and the importance of that, you mentioned the 71 insurrection and the aftermath, I was the official at the Ministry of Justice at the time who dealt with since 1975 since the restitution part came in and I thought what we did there was, I don’t want to go into detail, but it became very successful because I see even today when I come to Sri Lanka I meet many former members of the JVP,  who were incarceration , at the time I took over there was something like 18,000 youth , even in schools converted to jails at the time so I still met them, some of them are political leaders today, some of them are in education holding very high positions in society so without going into that, coming back to  restorative justice, we hear this term accountability  quite a lot from nationally, domestically as well as from human rights groups, the question is what do you really mean by accountability.  Does accountability mean simply penalizing somebody and which we may call justice as for an eye for an eye whatever or does it mean more than that as you mentioned the restoration of individuals back into society because post conflict situations usually lead to a feeling of helplessness, they feel they don’t belong, or a part of it and just having some food to eat or clothing to wear does not  necessarily mean that they are a part of the community or the society so can you please elaborate on the concept of restoration a little more.

Gunatilleke: What I may say may sound somewhat naïve but I think that we must not abandon the symbols that our given to jus by religion because forgiveness is at the root of all religions, I was amazed reading Prof. Ganlath Obseykera’s article on the Jathaka story  of Kali and there how this spiral of violence retribution which the woman who did not have children and the woman who killed the children,  and strangely when you read that you forget who is the victim and who is the perpetrator, because it is a spiral and finally what happens is a very simple thing of trust when they go before Lord Buddha there is a handing over of the baby who this woman wanted to devour and kill is handed over by the mother to the demon and she breaks down and weeps because all of her humanity counts. So it’s an amazing story  which I think all children and youth should read, but it is a letter of atonement and forgiveness but the problem is whether our society has the capacity  and it’s no use really not punishing, not punishing is the worst thing you can do, it is important that the process should be one of restoration.  I was listening the other day to a story of a Judge in New York had this to say, that his experience of suspended sentence for first offenders was remarkable whereas if you suspend the sentence they get back to society but if you sentence them to prison they are finished. So you have lot of examples of how society can devise norms and criteria for restorative justice.

Hangawatte: Addresing the future, I think you very eloquently stated what we mean by democracy really, what we mean  by sovereignty of the people and I think it has been written by others as well that at least in Sri Lanka we have had our colonial master who gave us a constitution  which they thought was the best for their colonial subjects and the power was then taken over by the elites as you mentioned and the elites then designed and gave the people at least two constitutions which they thought was the best so the reason I am asking this is now we have  apparently a situation we never had before a post conflict situation  and there is a constitutional process so do you think that the constitutional process where the constitution is enacted by Parliament could be considered a consensus constitution or do we mean by consensus or a constitution for which people can take ownership of somehow their participation is there which way not only the constitution they will feel that own and will therefore obey it and which will hopefully in structures that again people may feel they own, whichever political view you have, is that what you meant? I would say that’s the ideal incidence. Second, that you have mentioned and the process of constitution making would be best if we follow something that is similar to the model in South Africa, where people participated and that came out of all, I mean there were hundred constitutions in different places and out of that came the final product and the people participated in it in a very vital way. But I do not know, how you can translate that in a Sri Lankan context, may be, while the nations constitution reforms are necessary there could be a broad based process of popular consultation where people could feel that they are part of the process of constitution making. I would strongly argue in favour of that. Silva: Mr. Gunatilleke you referred to a perception that there was discrimination of minorities and this would be very relevant to us in the formulation of recommendations, so could you identify the areas that you feel where there has been discrimination of minorities.

Gunatilleke: I think the discrimination existed at two levels, first came the perception of discrimination with the language bill and the problems that arose as a result of this language bill to participate in the main stream as they had none earlier – I think that was a real perception. I think they tried to correct it and that correction has not been full and still not there. But the second was a massive problem. I was reminded of this incident – the Katarina the hurricane in New Orleans and when it came and when the people were abandon by a government that is powerful and rich, Michael Ignatius, who is now a re pro party in Canada wrote a beautiful article. He said ‘what happened is that the contract that the state had with the people to protect them broke down and that was fundamental’. We must ask ourselves of how often that the contract broke down with the Tamil people – 1983, 1958 and yet we do those breaches, I think the violence that occurred and the perception that they as citizens of Sri Lanka could not get the protection of the state is fundamental to the sense of alienation.

C.R. de Silva: Apart from this, are there areas of discrimination where education is concerned, where admissions to universities are concerned, If so, what are your views?

Gunatilleke: I am not quite conversant with all the facts and figures, but I would say that, that wouldn’t apply because even if you take the law faculty and look at the different streams there, I think they are well represented.

C.R. de Silva: Then do you feel that there is a lack of understanding between the communities and one of the reasons is the lack of understanding the language – some of the Tamils don’t understand the Sinhalese, because they don’t understand the language that the majority speak, at the same time the Sinhalese do not understand the language that the minority speak or the Tamils’ speak. So would you agree that Sinhala and Tamil should be made compulsory subjects, in the school curriculums’, so that the Sinhala boy gets exposure to the Tamil Language and the Tamil boy gets exposure to the Sinhala language?

Gunatilleke: Yes, this is a topic which has been hotly debated and discussed. A bilingual community with Sinhala and Tamil is one of the best ways in which really you can bring together two communities. We knew that in our own time when we were students however, we didn’t see each other in ethnic categories, we talked together but that happened because, as English was linking. This would happen of course if you had Sinhala and Tamil, but there three issues here. To what extent that the should, given the limited, – not that three languages ca not be learnt here, you have examples in other countries that students have learnt three languages and you promote the facilities for that. The English as a language will be demanded by all. We did a recent survey in five districts and we asked this same question and we found the people who answered, the householders, said that it should be the mix of the three, but they were not ready to say that go first with Sinhala and Tamil as compulsory – Sinhala, Tamil and English. Because English is the international language and they want their children to be having that knowledge. I would hesitate to say that it must be compulsory, but it should be as a subject – this is the problem of bilingualism, I know if you go to a country like Switzerland, which I think has three languages, here you find places where some people don’t know the other language and it doesn’t create a problem because they may be in remote areas they do not come in contact with the other groups. It’s not lack of understanding, the lack of understanding comes when they interact and when there is a situation where you have to interact and get a service from the other. If a person who speaks German goes to a post office and finds it difficult to communicate in French to interact. I think these situations will always occur when they are not so fundamental.

C.R. de Silva:  As far as English is concerned, most people thing that for up ward mobility you need English. Don’t you feel that one of the problems, especially among the youth, is that they don’t understand each other? During our days we spoke English, so that problem was not there. But now the situation is in schools you have a Tamil medium, in others you have a Sinhala medium and in schools where there is both the Tamil medium and the Sinhala medium they don’t mix, as a result they don’t understand each other and the segregation, so don’t you think that the Sinhala boy should be given some sort of knowledge in the Tamil language, while the Tamil boy also must be given some sort of exposure in the Sinhala language to understand and communicate with each other. I don’t say that they have to study in these languages but to cultivate a basic knowledge of the two languages that are spoken in this country. I would classify it as practical Sinhala and practical Tamil.

Gunatilleke: It may not have been important in an earlier time when really people did not have that close interaction, but we are getting more and more integrated, and we are moving forward. In doing that I think you will not neglect the knowledge of English, which is the major subject.

C.R. de Silva: I think and this is my personal view, successive governments have given step motherly treatment to the study of English. Now what will be the strategy that you would suggest to improve the standard of English? Also so that people in the rural area would also get some sort of knowledge or working knowledge in English?

Gunatilleke: The initiatives that are taken in English and IT and so on are in the right direction. They have to be strengthen, further improved and so on. But the government has made that a priority – English and IT. So I would suggest that that strategy should be pursued as strongly as possible. Of course the restrains are essentially the personnel available for teaching. But this new interactive program of teaching Tamil and Sinhala and also English through the TV and radio must be pursued. I think one needs to work very much more on that. Because these are the instruments that people generally go for.

C.R. de Silva: What you are saying is that due to lack of teachers, the use of the electronic media for the purposes of teaching. But you can’t totally dispense with teachers because there has to be contact between the student and the teacher, which is very important. But as a temporary measure the electronic media can be used.

Gunatilleke: And may be that should be systematized. We find, after all, such marvelous long distance education programs conducted in the UK and so on  There is no reason, so to why the same distance education method could not be developed and adopted to teach Sinhala, Tamil and English here, the Open University can be the means of carrying out the program to strengthen this objective.

Paranagama: Now right through out this period there has been some good relationship through religious means, the Tamil community has been going to the temples and the Sinhala community has also being going to their Kovil, is it due to any cultural relationship they have had or any religious fear? What have you got to say to that?

Gunatilleke: I think there is a long history of links between the Buddhist and the Hindus, that’s clear and it’s continuing. Some of the civil society initiatives, which are people to people links, are dealing a lot with that at the ground level, it may be called a belief or a particular belief around a deity, all of these are very vital.

Paranagama:  So that means that the religion is a good way to begin with.

Gunatilleke: I think so. I would say that there is great scope. And then there is of course, the major thing, you have Christianity straddling the Tamil and The Sinhala. You have a community there which really is multi ethnic, and they tend to a great deal and ways.

C.R. de Silva: I would very much be interested to know your views on what the state could do to reach out to the expatriate communities, who are called the Diaspora, make them part of the reconciliation process. Any particular measures that you would suggest?

Gunatilleke: I would agree with that. That is extremely important. I remember in the past we were constantly trying to see whether one could assemble a multi ethnic group in the Diaspora. You have to reach to the hard groups who are campaigning and so on and trying to resurrect the agenda for the LTTE,- that’s a separate group. But the other groups – we have the capacity to bring together the Sinhala, Tamil, Muslim expatriates in an initiative for peace and reconciliation, from the foreign community that might be helpful. And I think the embassies and so on can really work on that. 

C.R. de Silva: I must on behalf of the commission thank you for having come here considering the very busy schedule of work that you have and also for the thought provoking presentation you have made very objectively and I think some of the thoughts you have expressed would be very helpful to the commission in formulating our recommendations. Thank you.

Gunatilleke: Thank you very much for the opportunity that I have been given.



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