From off-track to the right track | Daily News

From off-track to the right track

UNHRC chief Zeid Ra'ad Al Hussein

Excerpts from the Annual Report of the United Nations High Commissioner and the Secretary-General at the 32nd session of the Human Rights Council

This oral update is presented pursuant to Human Rights Council Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka, which was adopted by consensus with the co-sponsorship of Sri Lanka. The Human Rights Council noted with appreciation the High Commissioner’s report on Sri Lanka to its 30th session, including the findings and conclusions of the comprehensive investigation undertaken by OHCHR, and encouraged the Government of Sri Lanka to implement the recommendations contained therein. Sinhalese and Tamil versions of the OHCHR investigation are now available at: The Human Rights Council requested OHCHR to continue to assess progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights, and to present this oral update to the Human Rights Council at its thirty-second session.

Building on the recommendations made in the High Commissioner’s report based on the OHCHR investigation, Resolution 30/1 sets out a comprehensive package of judicial and non-judicial measures necessary to advance accountability and reconciliation in Sri Lanka, as well as strengthen protection of human rights, democracy and the rule of law. The resolution represents an historic commitment by the Government of Sri Lanka not only to the international community, but also most importantly to the Sri Lankan people, of its determination to confront the past and end corrosive decades of impunity, serve justice, achieve reconciliation, and build inclusive institutions to prevent the recurrence of violations in the future. As President Sirisena eloquently argued in his Independence Day speech on February 4, 2016, “it will be freedom, democracy and reconciliation which will be brought by implementing these resolutions”.

National Unity Government

Nine months on from the adoption of Resolution 30/1, and eighteen months since the inception of the National Unity Government, it is therefore timely to take stock of Sri Lanka’s progress in implementing these commitments, to identify challenges and constraints, and to recommend strategies for moving forward, including how the Human Rights Council can continue to support this process.

This oral update has been greatly informed by the High Commissioner’s own visit to Sri Lanka from February 6-10, 2016. The High Commissioner again expresses his appreciation to the Government for the full cooperation extended throughout his visit. He had the opportunity to meet with President Sirisena, Prime Minister Wickremesinghe, Leader of the Opposition Sampanthan, Foreign Minister Samaraweera and other ministers, as well as military service chiefs. The High Commissioner travelled to Jaffna, Trincomalee and Kandy, where he met provincial chief ministers and officials, religious leaders and a broad spectrum of victims and civil society representatives.

This update has also benefited from the observations and recommendations made by a number of Special Procedures mandate holders who have visited Sri Lanka in recent months. The High Commissioner welcomes the Government of Sri Lanka’s very positive and productive engagement with the United Nations human rights mechanisms including the standing invitation issued by Sri Lanka to all Special Procedures in December 2015. The Working Group on enforced and involuntary disappearances made a full country visit in November 2015. The Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence has continued to remain in close contact with both the Sri Lankan authorities and civil society, making his second and third technical visits in January and June 2016 respectively. The Special Rapporteurs on torture and other cruel, inhuman and degrading treatment or punishment and the Special Rapporteur on the independence of judges and lawyers recently completed a joint official visit in April-May 2016. The Special Rapporteur on minority issues is expected to visit in October 2016 and the Special Rapporteur on freedom of opinion and expression has been invited to visit in early 2017. The High Commissioner also welcomes Sri Lanka’s ratification of the International Convention for the Protection of All Persons from Enforced Disappearance (CED) on May 25, 2016. Several human rights treaty bodies will review progress of Sri Lanka’s implementation of its treaty obligations in the coming months. Sri Lanka will also come under review at the 28th session of the Universal Period Review Working Group in October-November 2017. On June 21, 2016, the Government provided information to OHCHR which has been taken into account in the preparation of this oral update.

OHCHR has continued to provide technical assistance to the Government in a number of areas through its in-country presence and the deployment on mission of experts and senior officials from OHCHR headquarters. This has included support to the design and roll-out of the national consultations process, and advice on concepts for transitional justice mechanisms. OHCHR also works closely with the Human Rights Commission of Sri Lanka and civil society, and is fully engaged with the Resident Coordinator and UN Country Team in developing programmatic activities under the UN Peace building Fund.

The National Unity Government formed in September 2015 among a broad spectrum of political parties, including the Sri Lankan Freedom Party (SLFP) and the United People’s Party (UNP), has consolidated its position, creating a political environment conducive to reforms. But the full promise of governance reform, transitional justice and economic revival has yet to be delivered and risks stalling or dissipating.

Negotiating party politics and power sharing within the coalition has proved complex as the Government seeks to build and retain the two-thirds majority in parliament necessary to reform the Constitution. This is manifest in an extensive Cabinet with overlapping ministerial mandates, and mixed messages on crucial issues such as accountability.

New constitution

Significant momentum has been achieved in the process of constitutional reform. On March 10, 2016, Parliament adopted a resolution establishing a constitutional assembly to draft and approve a new constitution or amendments by the end of 2016, which would then be put to a referendum in 2017. The drafting process has benefitted from an inclusive public consultation process overseen by a Public Representations Committee that received submissions and held district level consultations in the first quarter of 2016.

From a human rights perspective, the constitutional reform process presents an important opportunity to rectify structural deficiencies that contributed to human rights violations and abuses in the past and reinforce guarantees of non-recurrence. These could include a more comprehensive Bill of Rights, stronger institutional checks and balances, enhanced constitutional review, improved guarantees for the independence of the judiciary, effective individual complaints mechanisms and greater direct enforceability of international human rights treaty. Also, as demonstrated by other countries’ experience, is the strengthening of civilian oversight over the military in the form of multiple oversight and accountability mechanisms over defence policy, discipline and promotion, budgeting and procurement. The new Constitution will also be important in facilitating the establishment of the transitional justice mechanisms envisaged by the Government, for instance the criminalisation of international crimes in national law or allowing for the involvement of international judicial personnel. At the same time, the High Commissioner hopes that the political process of adopting constitutional changes will not involve trade-offs and compromises on core issues of accountability, transitional justice and human rights.

An early gain from the Government’s first tranche of constitutional reform, the 19th Amendment adopted in April 2015, has been the restoration of the Constitutional Council to recommend appointments to the senior judiciary and key independent institutions. This in turn has seen the appointment of reputed members to the Human Rights Commission of Sri Lanka. Although the Human Rights Commission still requires strengthening in terms of resources and staff, its new found independence is already showing results with public statements and interventions on draft laws and issues such as the death penalty, police abuse, detention, and witness protection. The High Commissioner hopes that other Government bodies will give this important institution greater cooperation and respect, and involve it fully in all aspects of the transitional justice and constitutional reform process.

Military celebrations of 2009 victory

The Government has also continued to take some important symbolic steps towards promoting reconciliation and changing the majoritarian political culture. In November 2015, the Government de-listed a number of Tamil diaspora organisations and individuals who had been proscribed under the Prevention of Terrorism Act (PTA). The decision to sing the national anthem in both Sinhala and Tamil on Independence Day in February 2016 for the first time since the early 1950s was a powerful gesture, followed the next day by the reciprocal visit of the Tamil Chief Minister of the Northern Province to a Buddhist temple in Jaffna. On May 19, 2016, the previously hubristic military celebrations of the 2009 victory were replaced by a more understated Remembrance Day. President Sirisena and Prime Minister Wickremesinghe have visited war-affected and displaced communities, and the President pardoned a convicted LTTE prisoner who once plotted to assassinate him.

A UNHRC session in progress

The High Commissioner firmly believes that bold and visible steps of this kind can have a far-reaching effect in creating a climate of confidence and trust, but obviously need to be accompanied by more institutionalized change. At the same time, he is concerned by continued aggressive campaigns in social media and other forms (such as the “Sinhale” bumper sticker campaign) that stoke nationalism against ethnic, religious and other minorities. In recent months, incidents targeting the Muslim community, evangelical Christian and LGBT groups have continued to be recorded. The High Commissioner encourages the Government to be more forthright in combating such discriminatory violence, including through appropriate legislation to regulate hate speech and incitement to violence.

The Government has also not moved fast enough with other tangible measures that would help to build confidence among victims and minority communities. In 2015, the Government made initial progress in the identification and release of civilian land in the North and East still held by the military, with 3,136 acres returned to some 2,200 families. In 2016, the Armed forces have reportedly released further 2,652 acres, mostly in Jaffna and Mannar areas. During his visit, the High Commissioner was told of some of the complexities being encountered in the release of land and relocating structures built by the military, but he was assured a new task force was expected to complete the process by June. Since then, little progress has been reported and civilian leaders and officials seem to be struggling to secure cooperation from the military. Reports continue of military engagement in commercial activities, including farming and tourism. During his visit to displaced communities in Jaffna, the High Commissioner observed that the lack of transparency and information is feeding new levels of frustration and disenchantment. As one IDP camp resident in Jaffna told him: “We have good governance now, but we just want to go home.”

The fate of remaining security detainees held under the PTA remains a major concern for the Tamil community. In December 2015, the Government released on bail 39 individuals detained without charge, but around 250 detainees are believed to remain in detention. The Government has made indictments in 117 of these cases, and in January created a special High Court bench to expedite proceedings. The Government had promised the Attorney-General’s Office would make decisions by the end of March but there have been no further charges or releases this year. This situation is not only traumatic for the individuals concerned -some of whom resorted to hunger strikes- and for their families, but a source of growing frustration among Tamil political parties and community at large. At the end of his visit in February 2016, the High Commissioner urged the Government to quickly find a formula to charge or release the remaining security-related detainees.

New PTA arrests

This situation is compounded by the Government’s continued reliance on the PTA to make new arrests, despite its commitment to repeal the law. According to reports, the Government has made more than 40 new PTA arrests in 2015-16, including more than 25 in March-April 2016 during a security operation after the discovery of an explosives cache in Jaffna. The manner in which some of these arrests reportedly took place, in an arbitrary manner and without following proper legal procedure, have led some to compare them to the infamous “white van” abductions/disappearances of the past. While there are clear differences (all those arrested reappeared in detention in matter of hours), such cases strike fear in the community and undermine confidence in the Government’s efforts to restore the rule of law and criminal procedures in accordance with the law and international standards. The Special Rapporteur on torture also highlighted at the end of his visit recurring allegations of torture and ill-treatment of security detainees, albeit with less frequency and severity than the past. Some groups have also reported cases of torture and sexual abuse of Tamils returning to Sri Lanka from abroad who are suspected of LTTE involvement.

These continuing concerns point to a deeper challenge for the Government in asserting full civilian control over the military and intelligence establishment and dismantling the units and structures allegedly responsible for grave violations in the past. Despite welcomed steps towards demilitarization, such as the removal of checkpoints, the military presence in the north and east remains heavy and a culture of surveillance and, in certain instances, intimidation and harassment persists. Former detainees released after rehabilitation and civil society groups working with victims continue to face regular security checks and questioning about their work.

Meanwhile, the Government has initiated the drafting of new security laws to replace the PTA. The High Commissioner hopes it will take into account the many previous observations made by UN human rights mechanisms, and offers the support and engagement of his Office in this regard. The Human Rights Commission has recently re-issued directives intended as safeguards upon arrest under the PTA. On June 17, the President issued similar directions to the Commanders of the Armed Forces and the Police to enable the Human Rights Commission to exercise and perform its powers, functions and duties and for the purpose of ensuring that fundamental rights of persons arrested or detained are respected and such persons are treated humanely. The High Commissioner welcomes these directions and encourages the Government to involve the Human Rights Commission fully in the review of legislation, and strengthen its powers for the full, independent and unimpeded monitoring of places of detention.

Another way for the Government to quickly build public and international confidence in its determination to pursue accountability, and meet its obligations under international human rights law, would be to achieve successful prosecutions in some of the emblematic human rights cases pending before the courts. During its first months in office, there were a number of high profile breakthroughs and arrests made in a number of prominent cases, for instance the disappearance of journalist Prageeth Eknaligoda, the killings of newspaper editor Lasantha Wickrematunge and Tamil MPs Joseph Pararajasingham and Nadarajah Raviraj, and the murder of rugby player Wasim Thajudeen, but progress has since slowed. The Trincomalee Five and ACF cases remain at various stages of summary proceedings, although the Government has made renewed efforts to facilitate the appearance of witnesses.

Inevitably, the transformative process on which Sri Lanka is embarked will take time. Dealing with the multiple tracks of constitutional reform, transitional justice, economic recovery and security sector reform would tax the capacity of any government. Nevertheless, the High Commissioner urges the Government to take concrete steps to address the impatience, anxiety and reservations towards the process that stem from various quarters, and reiterates the importance for all Sri Lankans to rally behind the process.

The encouragement and support of the Human Rights Council has been crucial in underpinning this process and giving assurance and confidence to all stakeholders, particularly the victim community. The High Commissioner therefore hopes the Human Rights Council will sustain its close engagement and he looks forward to reporting on further progress at its thirty-fourth session. 


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