An empty shell?
by South Asian Centre for Legal Studies, Colombo, July 4, 2018
A few days ago, the Office for Reparations Bill was gazetted. According to the Bill, the Office is expected to play a role in the formulation and implementation of reparations policies for violations of human rights and humanitarian law that have occurred in a specific context. However, the role of the Office is limited to making recommendations to the Cabinet of Ministers and implementing decisions of the latter with respect to reparations. As such, the Office has essentially no decisional power with respect to the design and implementation of reparations policies.The following highlights fundamental shortcomings and other issues in the Bill.
According to the Bill, the Office is competent to provide reparations (or make recommendations for reparations) for violations of human rights and humanitarian law that have occurred (i) in the course of, consequent to, or in the connection with the conflict which took place in the Northern and Eastern Provinces or its aftermaths, (ii) in connection with political unrest of civil disturbances,(iii) in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or (iv) due to an enforced disappearance (clause 27).
The Bill specifies that an aggrieved person is “a person who has suffered a violation of human rights or humanitarian law (as contained in the First, Second, Third, or Fourth Geneva Conventions of 1949)” (clause 27). The limitation of the relevant humanitarian law to the provisions of the Geneva Conventions is problematic. Indeed, the Conventions’ provisions, with the exception of common article 3, are only applicable to international armed conflicts and as such will not be relevant to Sri Lanka. Instead, the Bill should also have recognized violations of customary international humanitarian law applicable to non-international armed conflicts.
Furthermore, it is essential that the Bill’s definition of an aggrieved person mirrors—or is interpreted in light of—the comprehensive definition of a victim provided in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. It is important to note in this respect that under the Basic Principles and Guidelines, the term victim also includes the immediate family or dependants of the direct victims as well as persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
FORMULATION OF REPARATION POLICIES
CRITERIA FOR THE DESIGN OF REPARATIONS POLICIES
Although the Bill does not comprehensively specify the criteria according to which recommendations for specific types of reparation should be made, it nonetheless provides some indication in this respect. Notably, it appears that being the victim of a serious violation of human rights or humanitarian law in the context specified by the Bill constitutes a necessary but not a sufficient condition to benefit from reparations (clause 11(1)(c)). In fact, the Bill specifies that the Office should formulate recommendations with regard to the criteria for eligibility for aggrieved persons to obtain reparations (clause 11(1)(g)(i)). It is unclear whether these criteria would clarify the definition of an “aggrieved person” adopted in the Bill or would constitute additional criteria for eligibility.
The Bill also provides limited indication regarding the factors to be taken into account when making recommendations for acceding to and prioritizing reparation claims and deciding on the collective or individual nature of reparations (clause 12(1)). Relevant criteria include the seriousness and impact of the violation and the indigence of the victim in particular when deciding on the appropriateness of monetary compensations. However, the mention of these criteria as well as principles such as non-discrimination, facilitating reconciliation, and ensuring sensitivity to the experience of all aggrieved parties are purely perfunctory and do not offer actual guidance on the design of reparation policies.
In terms of its functions, the Office will first have a limited role in the design of reparation policies. It is envisaged that the Office will formulate and forward reparation policies and guidelines to the Cabinet of Ministers for approval (clause 11(1)(g)). Accordingly, the adoption of policies and guidelines on reparations designed by the Office is contingent on approval being granted by the Cabinet of Ministers. This is an unnecessary procedure which can unduly hinder the expeditious fulfilment of the Office’s mandate. As per Article 42(1) of the Constitution, the Cabinet of Ministers is charged with the “control and direction of the Government of the Republic”. However, this does not necessarily imply that the Cabinet of Ministers is constitutionally required to approve all policies. This unnecessary requirement of designating the Cabinet of Ministers as the final decision-maker on the adoption of reparations policies and guidelines is very problematic as the latter may refuse and/or delay approving the recommended policies on reparations. Additionally, the Bill does not provide for any safeguards to ensure that the Cabinet of Ministers will duly consider the Office’s recommendations. The Bill is wholly silent on whether the Cabinet of Ministers has a legal obligation to consider the recommendations made by the Office, is bound to exclusively approve recommendations made by the Office, has full discretion to reject such recommendations or order alterations. Furthermore the Bill does not provide for any timeline for approval to ensure expeditious approval of policies and guidelines on reparations.
Even more problematic is the requirement that the policies and guidelines approved by the Cabinet of Ministers and authorizing the disbursement of funds must be placed before Parliament for its approval (clause 22(4)). It must be noted that the great majority of policies and guidelines on reparations are likely to entail the disbursement of funds. As such, the Bill adds another layer of Parliamentary oversight by specifically prohibiting any disbursement unless the reparations policies and guidelines authorizing these have been approved by Parliament. It must be noted that, despite the Cabinet of Ministers being collectively answerable to Parliament, not all policies/decisions of the Cabinet of Ministers require specific approval by Parliament. As such, this procedural requirement is unnecessary. It is also redundant given that the Office has its own Fund for the carrying out of its mandate (clause 16).
IMPLEMENTATION OF REPARATION POLICIES
LIMITED POWERS OF IMPLEMENTATION
The Office does have the power to implement the policies of reparation after they have been approved by the Cabinet of Ministers and grant individual and collective reparations (clause 11(1)(h)), however the Bill stops short of clarifying if the Office has the power to direct state entities to act in furtherance of the policies. In fact, it would have been extremely useful for the Office to have the power to direct state institutions to implement reparation policies. Such a power could have, for instance, been used to speed up the release of private land by the military or to implement important education reforms. Again, the Bill significantly limits the scope of the Office’s initiative with respect to the carrying out of reparations programmes.
EXAMINATION OF REPARATIONS CLAIMS
In terms of the procedure for the examination of reparations claims, the Office is empowered to receive and verify the authenticity of such claims (clause 11(1)(b)). This would require the Office to verify that the person has been the victim of a serious human rights or humanitarian law violation, and that the said violation falls within the mandate of the Office. Although the Office for Reparations may gather information (clause 11(1)(q)) or request assistance (clause 11(1)(t)) from governmental authorities or any other source, unlike the Office on Missing Persons, it is not vested with extensive powers of investigation. It is therefore likely that the threshold for verification will be relatively low. It is important to recall in this respect that according to international standards, and in particular the Basic Principles and Guidelines, the fact that the perpetrator is not identified, apprehended, prosecuted, or convicted shall not prevent the recognition of the victim’s status. While guidance with respect to the examination of the reparation claims should ideally be provided in the legislation, absent any criteria in the legislation, the method for verification (including the type of information or evidence required to prove the claim, the threshold of certainty required and any appeal mechanism available to victims whose claims have been rejected) must be specified in the rules and regulations issued by the Office (clause 11(1)(e)).
The recently approved Office for Reparations Bill lays out the Office’s mandate, composition and functions. It also creates a number of offenses to ensure that the carrying out of the Office’s functions remain free from interferences. Although the Bill is generally quite detailed, it also leaves unresolved a number of questions. Among these are procedural issues regarding the discharge of the Office’s functions as well as substantial questions regarding reparations policies. While these questions may be left to the appreciation of the Office, questions regarding the Office’s mandate would benefit from further clarifications in the Bill itself.
More critically, the Bill does not grant any significant powers to the Office with respect to the design or implementation of reparations policies. This is extremely concerning given that the Office was envisaged precisely to play a leading role in this respect. Instead, the Office’s functions are limited to making recommendations to the Cabinet of Ministers and implementing the policies decided upon by the latter. The significant limitations of the Office’s decisional powers call into question the very need for a new legislation to create such a body in the first place. One must also question the usefulness of the guarantees of independence especially provided for in the Bill (including the appointment of the members on the recommendations of the Constitutional Council) when in fact the Office will merely make recommendations with respect to reparations policies that will ultimately have to be decided upon by Cabinet and Parliament.