Implementing the LLRC Recommendations
“Two disputants agreed to visit the village sage seeking mediation on their bitter dispute. He listened patiently to both. At the end, addressing one, the mediator said the disputant was right. Turning to the other, the mediator said that he too was right. The watching wife asked how could both be right at the same time. The mediator replied, ‘you too are right’.”
The Lessons Learnt and Reconciliation Committee (LLRC), a committee of high intellect, was charged by the then Government, with the cognitive challenge of defining reconciliation and offering suggestions for post-conflict settlement. It recommended, among others, that urgent attention be given to resolving land displacement issues in the North-East (N-E) conflict zones, as a load-bearing part of general reconciliation approaches. Government decided that this recommendation be implemented through Sri Lanka’s mediation system, which had gained international recognition. The first of the Land Mediation Boards (LMBs) for the N-E conflict zones was established in Jaffna. This was to be followed with three more, in Kilinochchi, Trincomalee and Batticaloa.
With the end of the military conflict, a number of civil issues - which so far had lain unattended or dormant- surfaced for attention. Of them, one of the most intractable pertained to land. Land is an asset, but of a special class. Land is rarely owned solely to gain a return on capital but mostly, to incorporate emotions; many consider land as their soul-blood of existence, offering the owner a levitational lever to rise in social positions. Share-ownership in a company serves as a transactional asset. Land ownership is more fundamental, it provides an alchemy, to socially transform individuals. Land ownership or its deprivation has profound social implications, deprivation even leading to revolutions.
An unravelling of problems and finding solutions to the complexities of land transactions in conflict zones, not only require hard, technical approaches of analysis (law, history, etc) but also soft, behavioural initiatives of change (sociology, psychology, etc)
Because of the length of the military conflict, the normal adjudication on land issues to permit society to function -- like giving legal form to land transactions for award of dowries -- was not always feasible. To fill the vacuum, a variety of ad hoc, work-a day solutions, had been pragmatically devised, some of them not in strict conformity with principles of judicial equity or even the law. These solutions were nevertheless accepted as legal by a beleaguered society. With peace now prevailing, there emerged countervailing pressure to disregard these ‘Wild West’ decisions; it sought a restoration of the status quo ante, on the argument of force majeure. The principle invoked here is retributive justice, where a victim seeks a rectifying remedy from a perceived “perpetrator”.
Land is a significant part of a complex social interweaving in rural society. But precipitate action to ensure an immediate alteration of functioning land relationships -- whatever their zombie provenance -- by an unemotional, remedial application of retributive laws, is not possible. Law is objective but it has soul. Hasty remedy would be disruptive of society at all levels, whether in the village, intra-community or inter-community levels. Since Government’s primary obligations are to maintain law and order and social stability, it would not acquiesce with such a disturbance. A soothing adjustment mechanism was required. The LLRC recommended reconciliation, meliorated through an adjustment process.
An unravelling of problems and finding solutions to the complexities of land transactions in conflict zones, not only require hard, technical approaches of analysis (law, history, etc) but also soft, behavioural initiatives of change (sociology, psychology, etc), coupled with an entrepreneurial push, the joint objectives of the three, being to ensure that a settlement should not become a generating point for a further round of contention. To enable this to be done, Government has proposed a mediation mechanism, on which it has over a quarter century direct experience. Community Mediation Boards, manned by volunteers, were formed under the law in each Divisional Secretariat. They work under a Mediation Boards Commission appointed by the President. Mediators, drawn from the community itself, (lawyers and politicians are debarred), function as a catalyst serving the parties at loggerheads, encouraging them to voluntarily work towards an “yes”, without an alien settlement being imposed on them. The victim and the “perpetrator” are voluntarily brought together in a face to face relationship and, in the presence of the mediator, discuss their problems to reach a settlement. At every point in the mediation cycle, it is an individual’s decision-making and voluntarism that is emphasised. If a settlement cannot be made, the contending parties could take recourse to the judicial system. Mediation is based on the principle of restorative justice: retributive justice is the mainstay of the formal judicial system. Restorative justice has a “perpetrator”, victim and a mediator from the community. Democracy is deepened by settling issues through give and take, not by imposition. Mediation provides a Gandhian opportunity for people themselves to decide on matters affecting them. When the Tsunami made land fall, causing widespread physical and social disruption, special remedial Tsunami Mediation Boards were appointed, which functioned under the same principles.
Mediation is an alternate conflict resolution mechanism to the judicial system. The formal judicial system attempts to establish the “Truth” and, from its divination, judicial decisions are made. From the time of Socrates, there have been attempts by “Truth” seekers and its vendors, to find an objective “Truth” but with little success. Recent concepts of Post-truth, fake news and alternate facts do not give credence to the existence of such an objective “Truth”. Truth Imperialism should not be the paramount consideration of Land Mediation Boards in settling land issues. They should concentrate on establishing stable, friction-free social systems as their primary objective, all else are supportive considerations. Land Mediation Board initiatives should be based, not through forensic analyses which yield the “Truth”, but, by encouraging behavioural trade-offs, accommodation, diplomatic agreements, condign adjustments, etc. Given the same circumstances, settlements reached under mediation could be different. “A foolish consistency is the hobgoblin of little minds”, said Emerson. Adjudication, based on “Truth” and precedent, play no part in mediation.
With the end of the military conflict, a number of civil issues - which so far had lain unattended or dormant- surfaced for attention
New problems require fresh approaches to solution, as existing intellectual concepts and categories are dated and unable to process new developments. Contentious, acerbic land issues -- a running sore in the conflict zones of the North-East provinces -- require new thinking, if reconciliation were to be achieved. Land Mediation Boards, while retaining fundamentals of mediation but garnished with fresh cognitive concepts, promise a fresh route to this end.
The writer was a former member of the Sri Lanka Administrative Service.