By Kumarathasan Rasingam –

Although Sri Lanka has invited several UN human rights experts to visit over the past two years and has given them free and unfettered access, the government has largely disregarded their recommendations.

UN Special Rapporteur on Human Rights and Counter-Terrorism, Ben Emmerson, at a media briefing at the conclusion of his mission to Sri Lanka after his visit from 10 July to 14 July 2017

The Special Rapporteur is encouraged by the Government’s recent adoption of a ‘zero tolerance policy’ towards to the use of torture; and by the appointment in July 2016 of a Committee to Eradicate Torture by the Police. In Sri Lanka, however, such practices are very deeply ingrained in the security sector and all of the evidence points to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds. Since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus.

This is widely used for those who are arrested under the DRACONIAN Prevention of Terrorism Act [PTA} [torture sexual assault and obtaining false confession letters for crimes not committed by the victims]

He notes that the Human Rights Commission is now routinely informed when an individual is detained under the PTA and has unfettered access to all places of detention. However, in a system that is premised on obtaining convictions by confessions, this, and other safeguards, have proved entirely insufficient to protect suspects against this most cowardly of international crimes.

Note: The DRACONIAN Prevention of Terrorism Act [PTA] is not repealed until now:

It is one on the condition [to repeal PTA] by the European Union to offer GSP+ concession which is not yet implemented.

The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, conducted a visit to Sri Lanka from 29 April to 7 May 2016

Regarding the legal framework, the Special Rapporteur recommends that the Government:

(a) Immediately repeal the Prevention of Terrorism Act;

(b) Review any draft legislation to replace the Prevention of Terrorism Act (national security act, state intelligence services act and prevention of organized crimes act) to ensure safeguards against arbitrary arrest and torture or cruel, inhuman or degrading treatment; provisions for access to legal counsel from the moment of deprivation of liberty, strong judicial overview of law enforcement and security agencies and protections for the privacy rights of citizens; and that there is a timely, robust and transparent national debate on the bills that is inclusive of all civil society;

(c) Immediately withdraw the proposed amendment to the Code of Criminal Procedure Act that would deprive a suspect of access to a lawyer until his or her statement has been recorded, and enact legislation that strengthens the right of suspects to prompt and regular access to lawyers from the moment of arrest;

(d) Ratify the Protocols Additional to the Geneva Conventions of 12 August 1949 and sign, and ratify, the Rome Statute of the International Criminal Court;  (Enact implementing legislation for all international treaties Sri Lanka has ratified, including the International Covenant on Civil and Political Rights

Regarding safeguards and prevention, the Special Rapporteur recommends that the Government:

(a) Immediately shut down any unofficial detention facilities that may still be in existence;

(b) Ensure prompt and official registration of all persons deprived of their liberty and periodically inspect records at police and prison facilities to ensure that they are maintained in accordance with the established procedures; failure to do so would entail investigating senior officers and holding them accountable;

(c) Digitize all registrations and records of all persons deprived of their liberty and make them accessible to the National Human Rights Commission;

(d) Guarantee that access to lawyers through the Legal Aid Commission or bar association or other service is granted, in law and in practice, from the moment of deprivation of liberty and throughout all stages of criminal proceedings;

(e) End the practice of incommunicado detention during the initial hours at unofficial detention locations; A/HRC/34/54/Add.2 21

(f) Ensure that statements or confessions made by a person deprived of liberty other than those made in the presence of a judge and with the assistance of legal counsel have no probative value in proceedings against that person;

(g) Ensure that all arrests are transparent, with the arresting officer showing proper identification, and based on objective evidence;

(h) Ensure that all detainees can challenge the lawfulness of detention before an independent court, i.e., through habeas corpus proceedings;

(i) Ensure that security sector officials (military, intelligence and police) undergo a rigorous reform programme that includes human rights education and training in effective interrogation techniques and proper use of force;

(j) Ensure that national security and policing procedures are compliant with international standards and that the Tamil population is adequately represented in the police corps at all ranks in the North and East so that law enforcement forces are able to communicate with and serve the population residing there (see CERD/C/LKA/10-17, para. 24);

(k) Introduce independent, effective and accessible complaint mechanisms at all places of deprivation of liberty by installing emergency telephone hotlines or confidential complaint boxes that are operational, and ensure that complainants are not subject to reprisals;

(l) Provide more specialized training in forensic medical investigation and documentation of torture and ill-treatment in accordance with the Istanbul and Minnesota Protocols;

(m) Authorize and facilitate regular, effective and independent monitoring of places of deprivation of liberty by international and national bodies, including the National Human Rights Commission and civil society organizations;

(n) Raise the age for criminal responsibility of juveniles to one that is internationally acceptable;

(o) Ensure the separation of juvenile and adult detainees and that children are held in detention only as a last resort and for as short a time as possible.

Regarding accountability and transitional justice, the Special Rapporteur recommends that the Government:

(a) Implement Human Rights Council resolution 30/1 and build a consensus to regain the confidence of all citizens and, in particular, torture survivors;

(b) Refer to international standards that require that societies approach national reconciliation by conducting truth-seeking and disclosure, justice through criminal prosecutions of perpetrators of serious crimes, reparation to victims and meaningful reform of institutions. The mechanisms by which these four steps are accomplished should be decided following extensive consultations with all stakeholders in a transparent and broadly participatory exercise that is just and earns the trust of all Sri Lankans, including those who live outside the country;

(c) Implement the recommendations made by OHCHR following its comprehensive investigation on Sri Lanka (A/HRC/30/61), in particular those related to torture and accountability;

(d) Establish an office to investigate and prosecute allegations of torture independent of the Office of the Attorney-General to ensure a break from the past culture of impunity, and make operational an effective and safe witness protection programme that excludes authorities who were part of the national security forces;

(e) Refer to the work of the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, who has stressed the need for a comprehensive transitional justice strategy that takes into account the links between these different mechanisms;13

(f) Implement the recommendations contained in the report of the Working Group on Enforced or Involuntary Disappearances;

(g) Implement the recommendations of the mission report of the Special Rapporteur on the independence of judges and lawyers

Report of the Special Rapporteur on the Independence of Judges and lawyers Monica Pinto after visit to Sri Lanka from from April 27 to May 07, 2016

Some of her recommendations are that:

1. Urgent measures should be adopted by the authorities to give effect to all the rights protected in international human rights treaties that have been ratified and are therefore in force. The authorities should also enforce the decisions adopted by the United Nations treaty bodies whose jurisdiction it has voluntarily accepted.

2. The chapter on fundamental rights of the Constitution should be thoroughly reviewed to ensure that civil, cultural, economic, political and social human rights are protected, in line with the international human rights obligations of the State. The Constitution should clearly and expressly recognize the fundamental principle of the separation of powers, establish checks and balances and guarantee the independence of the judiciary and the courts, as well as of the legal profession.

3. The composition of the Constitutional Council should balance the number of active politicians with representation from civil society, the Bar Association and academia so as to avoid the politicization of the appointment processes.

4. The Constitutional Council should set out and publish its rules of procedures, including the criteria used to evaluate candidates’ suitability for a given position, which should be scrupulously and consistently applied.

5. The selection and appointment of judges of both superior and first instance courts should be transparent at all stages and follow clear recruitment criteria, including technical requirements. Proper evaluation systems should also be established and published.

6. Serious considerations should be given to broadening the composition of the Judicial Service Commission, in particular by including judges of other courts and tiers and other experts, such as retired judges, lawyers and members of academia.

7. The Supreme Court should also sit in other parts of the country, including in the Northern and Eastern Provinces, to facilitate access to justice and raise the awareness of judges to the specific situation of people in regions outside of the capital, and contribute to building trust in the justice system.

8. The constitutional reform process should be continued in a transparent manner; relevant stakeholders should remain involved and the public should be kept informed at all stages.

Statement of the United Nations Special Rapporteur on Minority Issues, Rita Izsák-Ndiaye, on the conclusion of her official visit to Sri Lanka, 10-20 October 2016
In line with the proposal of the Public Representations Committee on Constitutional Reform, I recommend the Government to establish an Independent Commission on Minorities under the Constitution with a clear mandate, powers, resources and autonomy with the capacities of:

• reviewing and proposing domestic standards and providing expertise and information to legislation drafting and policy-making processes;
• monitoring laws and policies with respect to minority rights and recommending amendments or implementation measures;
• encouraging and coordinating programming on minority issues and strategies devised to address problems relating to minorities;
• promotion and education activities;
• developing good practice guides, information resources and reports;
• developing campaigns and outreach relating to minority rights;
• forming a bridge between minority communities and public administration; and
• facilitation of arbitration, dialogue, national debate and activities to prevent and find solutions to ethnic or religion-based tensions.

SELECTED RECOMMENDATIONS

Short-term recommendations, to be implemented as soon as possible:

• Begin taking necessary steps towards the establishment of an independent, dedicated minority rights mechanism in charge of coordinating minority issues, with the inclusion of representatives of minority communities.
• Ensure full protection of all minority places of worship as well as heritage.
• Ensure that the imminent constitutional reform includes a strong minority rights regime including a fully empowered Independent Commission.
• Extend full institutional cooperation to, and strengthen the existing independent institutions and ensure sufficient human and financial resources are provided for the full implementation of their mandates, including the National Human Rights Commission, the Office for National Unity and Reconciliation and the Secretariat for Coordinating Reconciliation Mechanisms.
• Repeal and replace the Prevention of Terrorism Act with anti-terrorism legislation in conformity with international standards.
• Review all cases of security-related detainees with a view to their swift release if there are no elements that would merit a prosecution or alternatively charge those against whom there is evidence of involvement in serious crimes.
• Continue the gradual release to the civilian populations of the remaining 6,124 acres (according to the Army figures) of the land currently held by the military in the Northern Province.
• Take the necessary measures to implement the recommendations of the Special Rapporteur on the human rights of internally displaced persons following his visit to Sri Lanka in December 2013, without further delay.
• Ensure the smooth and transparent process of establishment of the Office of Missing Persons by January 2017 with adequate budget and inclusive composition.
• Publicly condemn religious intolerance and hold perpetrators of hate crimes and violence accountable.
• Consider establishing a system of community liaison officers, to be placed in every public institution, with the necessary resources required to fulfil their mandate.
• Continue and step up psychosocial assistance programs to victims of the conflict according to their needs.
• Consider a review of all personal laws, especially the 1951 Muslim Marriage and Divorce Act, in line with international human rights standards and in consultation with the Muslim community including Muslim women’s groups.

Longer-term objectives with appropriate planning:

• Step up measures and allocate sufficient budget to ensure the implementation of language policy;
• Ensure that any future electoral reform ensures proportional representation for all minority groups on the basis of accurate data collection and disaggregation;
• Consider establishing affirmative action policies for under-represented communities in the government, the judiciary, armed forces and law enforcement, along ethnic, religious, linguistic as well as gender lines.
• Ensure multiple identity choice in the census and include options for smaller minorities to adequately self-identify themselves, collect and analyse data disaggregated by ethnicity, religion or language which will form a basis of appropriate policy-planning through targeted means if necessary.
• Form a vision for the reform of educational institutions to better foster friendship among children from different backgrounds and review the curriculum to ensure learning about each other’s culture, traditions, languages, and ethnicity.

It is to be noted the GOSL’S own Lessons Learnt and Reconciliation Commission’s recommendations is still not fulfilled:  eg:

• Investigate and inquire into alleged incidents of serious violations of human rights including the 2006 Trincomalee massacre and the 2006 massacre of 17 aid workers.

Five Students killed:  The five slain students, who were all 20-years-old when killed, are:

Manoharan Ragihar (22.09.1985)

Yogarajah Hemachchandra (04.03.1985)

Logitharajah Rohan (07.04.1985)

Thangathurai Sivanantha (06.04.1985)

Shanmugarajah Gajendran (16.09.1985)

It is 10 Years Since Aid Worker Massacre took place and so far no one has been convicted.  In view of the above deliberate delays and tactics, international role needed to ensure justice

 It is high time for the United Nations, International Community, Human Rights Organizations and Human rights Activists to demand justice to the oppressed Tamil Community in Sri Lanka who are living under an army of occupation.