{"id":182918,"date":"2017-10-11T00:00:14","date_gmt":"2017-10-10T18:30:14","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=182918"},"modified":"2017-10-16T00:22:53","modified_gmt":"2017-10-15T18:52:53","slug":"frequent-visits-by-un-special-rapporteurs-sri-lankas-defiance-in-implementing-their-recommendations","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/frequent-visits-by-un-special-rapporteurs-sri-lankas-defiance-in-implementing-their-recommendations\/","title":{"rendered":"Frequent Visits By UN Special Rapporteurs & Sri Lanka\u2019s Defiance In Implementing Their Recommendations"},"content":{"rendered":"

By\u00a0Kumarathasan Rasingam<\/a>\u00a0\u2013<\/strong><\/p>\n

\"\"<\/a>

Kumarathasan Rasingam<\/p><\/div>\n

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. <\/span><\/p>\n

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<\/span><\/strong><\/p>\n

The Special Rapporteur is encouraged by the Government\u2019s recent adoption of a \u2018zero tolerance policy\u2019 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, <\/span>endemic and routine,<\/span> 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 <\/span>State\u2019s well-oiled torture apparatus.<\/span><\/p>\n

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] <\/span><\/p>\n

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.<\/span><\/p>\n

Note: The DRACONIAN Prevention of Terrorism Act [PTA] is not repealed until now:
\n<\/span><\/p>\n

It is one on the condition [to repeal PTA] by the European Union to offer GSP+ concession which is not yet implemented.<\/span><\/p>\n

The Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. M\u00e9ndez, conducted a visit to Sri Lanka from 29 April to 7 May 2016<\/span><\/strong><\/p>\n

Regarding the legal framework, the Special Rapporteur recommends that the Government:<\/em><\/strong>
\n<\/span><\/p>\n

(a) Immediately repeal the Prevention of Terrorism Act;
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(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;<\/span><\/p>\n

(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;<\/span>\u00a0 (Enact implementing legislation for all international treaties Sri Lanka has ratified, including the International Covenant on Civil and Political Rights<\/span><\/p>\n

Regarding safeguards and prevention, the Special Rapporteur recommends that the Government: <\/span><\/em><\/strong><\/p>\n

(a) Immediately shut down any unofficial detention facilities that may still be in existence; <\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(c) Digitize all registrations and records of all persons deprived of their liberty and make them accessible to the National Human Rights Commission;
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

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

(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;
\n<\/span><\/p>\n

(g) Ensure that all arrests are transparent, with the arresting officer showing proper identification, and based on objective evidence;
\n<\/span><\/p>\n

(h) Ensure that all detainees can challenge the lawfulness of detention before an independent court, i.e., through habeas corpus proceedings;
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(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);
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(l) Provide more specialized training in forensic medical investigation and documentation of torture and ill-treatment in accordance with the Istanbul and Minnesota Protocols;
\n<\/span><\/p>\n

(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<\/span><\/p>\n

(n) Raise the age for criminal responsibility of juveniles to one that is internationally acceptable;
\n<\/span><\/p>\n

(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.<\/span><\/p>\n

Regarding accountability and transitional justice, the Special Rapporteur recommends that the Government:<\/span><\/em><\/strong>
\n<\/span><\/p>\n

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

(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;
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(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;
\n<\/span><\/p>\n

(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
\n<\/span><\/p>\n

(f) Implement the recommendations contained in the report of the Working Group on Enforced or Involuntary Disappearances;
\n<\/span><\/p>\n

(g) Implement the recommendations of the mission report of the Special Rapporteur on the independence of judges and lawyers<\/span><\/p>\n

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<\/span><\/strong><\/p>\n

Some of her recommendations are that:<\/span><\/em><\/strong><\/p>\n

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. <\/span><\/p>\n

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. <\/span><\/p>\n

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. <\/span><\/p>\n

4. The Constitutional Council should set out and publish its rules of procedures, including the criteria used to evaluate candidates\u2019 suitability for a given position, which should be scrupulously and consistently applied. <\/span><\/p>\n

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. <\/span><\/p>\n

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. <\/span><\/p>\n

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. <\/span><\/p>\n

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.<\/span><\/p>\n

Statement of the United Nations Special Rapporteur on Minority Issues, Rita Izs\u00e1k-Ndiaye, on the conclusion of her official visit to Sri Lanka, 10-20 October 2016
\nIn 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:<\/span><\/p>\n