UNHRC makes wide ranging recommendations to Govt

United Nations Human Rights High Commissioner Michele Bachelet has made a string of recommendations to the Government in her latest Report on Sri Lanka made public yesterday.

Posted on the UN Human Rights Council website, the Report came after the Government handed in its observations. The Sunday Times (Political Commentary) exclusively revealed the contents of the Report last week.

Here are the recommendations:

Ensure the drafting process for a new Constitution is based on broad and inclusive consultations, entrenches the independence of judiciary and key national institutions such as the HRCSL, and advances the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population;

Take into account the recommendations made by various human rights mechanisms on the protection of human rights in the Constitution and the guarantees needed for effective, independent and inclusive national institutions;

● Avoid reliance on the military to run civilian affairs and take steps to reduce the influence of the military on civilian life;

● Ensure that the Attorney General’s Department is able to operate independently in practice and pursue prosecutions against any suspected perpetrators of human rights violations and serious violations of international humanitarian law, irrespective of military rank, official or other position of power;

● Take a comprehensive approach to determine the fate and whereabouts of all the disappeared, including immediately opening military archives relevant to cases of enforced disappearance, independently investigate all those suspected of criminal responsibility for the enforced disappearance, and provide comprehensive reparation to the families of the disappeared;

● Publish the findings of the Commission of Inquiry into the 2019 Easter Sunday bombings to ensure transparency for victims and pursue further independent investigations into the involvement of any other state or non-state actors;

● Undertake more fundamental reforms to the Prevention of Terrorism Act to ensure it fully complies with Sri Lanka’s international law obligations; in the meantime, establish a moratorium on the use of the Prevention of Terrorism Act until it is replaced by legislation that fully complies with international human rights norms and standards;

● Expedite the review of all detainees held under the PTA and release everyone detained without sufficient legal and evidentiary basis. Ensure that counter terrorism measures do not undermine democratic and civic space;

● Ensure inclusive and broad-based consultation in the drafting and amendment of key laws, including the Prevention of Terrorism Act, the Voluntary Social Services (Registration and Supervision) Act, the Muslim Marriage and Divorce Act and other personal laws;

● Order all security agencies to immediately end all forms of surveillance and harassment of and reprisals against human rights defenders, social actors, victims and their families of human rights violations;

● Adjudicate land disputes in ways that are transparent, consultative, impartial, and non-discriminatory and ensure inter-faith dialogue on the erection of religious sites.

The Human Rights High Commissioner has also re-iterated the recommendations she made in paragraph 61 of her 2021 report to the Council and Member States.

Among other highlights in the Report are: “This written update is presented pursuant to Human Rights Council resolution 46/1 that requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to enhance its monitoring and reporting on the situation of human rights in Sri Lanka, including on progress in reconciliation and accountability, and to present a written update at its forty-ninth session. It focusses on developments since the High Commissioner’s last report on Sri Lanka in February 2021, including the broader trends she identified at that time. The report also includes an update on steps to strengthen the capacity of OHCHR to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction.

OHCHR appreciates the constructive engagement of the Government throughout the preparation of this update. OHCHR sent a list of questions to the Government of Sri Lanka on 25 October 2021 and received detailed written inputs on 8 December 2021, along with several later updates. Furthermore, the Government agreed to an OHCHR delegation visiting Sri Lanka in January 2022 for further consultations, however this could not take place due to the COVID-19 situation in Europe. Virtual consultations were held instead between OHCHR and Government counterparts on 24 January, and OHCHR met with a range of other stakeholders. OHCHR appreciates the open and substantive nature of these exchanges. The report was shared with the Government to provide an opportunity to comment…

Militarisation and land issues

As observed in previous reports, the past two years have seen an increase in the militarization of civilian government functions in Sri Lanka. The Government justifies these appointments in terms of improving efficiency and being in conformity with the law. The High Commissioner remains concerned, however, that the concentration of civilian positions in the hands of military officials, affects the democratic governance and the long-term character of the state.

In addition to the Ministry of Defence, current or former military officers -- including some implicated in alleged grave human rights violations -- now occupy positions of authority in several ministries, including Foreign Affairs, Public Security, Finance, Health, Wildlife and Forest Conservation. Although the Secretariat regulating NGOs has been transferred to the Foreign Minister, the Ministry of Defence controls at least 31 other agencies ranging from media to immigration. In August 2021, for example, a Major-General was appointed as Commissioner of Essential Services to oversee implementation of the emergency regulations to ensure food security and price controls. In December 2021, Army Commander General Shavendra Silva, was appointed to implement the President’s ‘Green Agriculture Operative Centre’ to promote and distribute organic fertiliser.

The President continued to renew Gazette notifications under Section 12 of the Public Security Ordinance which “authorises recourse to the armed forces in circumstances where the performance of police functions requires to be strengthened.” Such orders continue the militarized approach to law enforcement and expand the role of military in policing functions. Reports indicate a disproportionately high number of military checkpoints in the Northern province, and complaints of discriminatory treatment or harassment during security checks, particularly for women.

The release of land occupied by the military, particularly in the Northern and Eastern Provinces, has been an important element of peacebuilding and reconciliation. The Government reports that the total number of private lands released by the Armed Forces from 2009 to 31 October 2021 is 2,601,796 acres or 92.42 per cent, with a further 53 (0.19 per cent) acres is proposed for release. However, a renewed trend of land disputes related to Buddhist heritage conservation or forestry protection, has created new tensions with minority communities, particularly in the Eastern Province given the diverse population and heritage of the region.

Increasing majoritarianism and effects on reconciliation and peace building

In his address to the 76th session of the General Assembly in September, the President affirmed the Government’s “firm intention to build a prosperous, stable and secure future for all Sri Lankans, regardless of ethnicity, religion or gender.” However, actions by the Government during the past year have reinforced the nexus between Sinhalese nationalism, Buddhism and the state, increasing the sense of marginalisation and anxiety among Tamil, Muslim and Christian minority communities, and undermining the prospects for reconciliation…

The Constitution already recognises Sri Lanka as a unitary State (article 2) and the equality of citizens before the law (article 12), but the concept of “One Country, One Law” may have implications for the devolution of political authority and law-making powers to the provincial level. It may also relate to sets of customary personal laws that have allowed different communities to retain specific practices, preserving the diversity of multiple identities in Sri Lankan society. Today these are defined as the Thesawalamai Law that applies to Tamils in the Northern Province, the Kandyan law that is an elective matrimonial and inheritance framework for Kandy Sinhalese, and the Muslim personal law. All three regimes deal primarily with issues of property including land, inheritance including interstate succession, and marriage and divorce, but also have important identity-based symbolic value.

Separately, the Government informed OHCHR that a Muslim Law Reform Advisory Committee appointed by the Minister of Justice has made recommendations for the amendment of the Muslim Marriage and Divorce Act of 1951, General Marriages Ordinance and Civil Procedure Code, to bring them into the conformity with prevailing international standards. The legal draftsman is now preparing the amendments. The amendments reportedly will, inter alia, introduce a minimum age of marriage of 18 years for Muslims, introduce minimum educational qualifications for members of Qazi courts and the possibility of female members, and give Muslims the choice of registering their marriages under the General Law. The High Commissioner welcomes any progressive reforms that will strengthen the rights of women and girls in line with international human rights standards and encourages maximum consultation with the Muslim community, in particular women……

Intimidation and threats to civil society and victims

The pattern of surveillance and harassment of civil society organizations (CSOs), human rights defenders and victims highlighted in previous reports has continued, particularly for those in the country’s north and east. OHCHR continues to receive allegations of intimidation, monitoring and surveillance by security services against human rights defenders, civil society representatives, journalists, and families of the disappeared. The Government stresses that all such complaints should be submitted to relevant national mechanisms.

CSOs and activists are regularly visited in their offices or homes or called by the police for inquiries and questioned about staff and donors’ bank details, their foreign contacts, travel history, or the passwords of their social media accounts. For instance, in December 2021, the Terrorist Investigation Division (TID) of the police called the staff of at least four organizations in the Northern Province for ‘inquiries’ and questioned them for several hours. They were requested to submit all information on their funding organizations for the past years and details of the beneficiaries. The Government asserts that such scrutiny is necessary to combat money-laundering and financing of terrorism……

The High Commissioner is concerned by the Government’s recent public responses to human rights advocacy by well-known and respected civil society representatives and its conflation with LTTE propaganda. Similar interventions in the past have had a chilling effect on Sri Lankan human rights defenders, including in their interaction with the Human Rights Council……

OHCHR received several reports that victim groups continue to face harassment and intimidation from the authorities, including multiple visits from intelligence and police officers inquiring about plans for protests or commemoration or their past links with the Liberation Tigers of Tamil Eelam (LTTE). In addition, rehabilitated LTTE members and their families or anyone considered to have had any link to LTTE during the conflict are targets of constant surveillance…..

Custodial deaths, torture, and other ill-treatment

The High Commissioner remains seriously concerned about the repeated incidents of deaths in custody and alleged armed encounters with police…

The High Commissioner is alarmed that on at least two occasions, the Bar Association and private lawyers had notified the authorities that the detainees’ lives were at risk…

It was widely reported that in September 2021 the State Minister of Prison Management and Prisoners’ Rehabilitation, Lohan Ratwatte, forcibly entered a prison in Colombo with a group of friends to show them the gallows, and later a prison in Anuradhapura where he allegedly forced two Tamils detained under PTA to kneel at gunpoint and threatened to kill them. Ratwatte resigned from the Prisons portfolio but retains his position as State Minister for Gems and Jewellery……..

Prevention of Terrorism Act

On 10 February 2022, the Prevention of Terrorism Act (PTA) Amendment Bill was presented to Parliament. The Government informs these are initial steps towards promulgation of more comprehensive legislation. The High Commissioner recognises the importance of this initial step and notes the proposed amendments, such as the increase of magistrates’ powers to visit places of detention, speeding up of trials, as well as the repeal of section 14 which imposes serious limitations to publications. However, other parts of the proposed amendments do not comply fully with Sri Lanka’s international human rights obligations and leave intact some of the most problematic provisions of the PTA which have led to alleged human rights violations including arbitrary detention and torture. These include an overly broad and vague definition of terrorism, which may result in discriminatory or arbitrary application of the law, and the admissibility of confessions under the PTA made to law enforcement without a lawyer’s presence, often used as primary evidence in courts in PTA cases, lengthy administrative and pre-trial detention of up to 12 months, and provisions for immunity of officers from prosecution which are not in compliance with the international human rights standards.

The High Commissioner urges the Government and the Parliament to give full consideration to the analysis and recommendations made over many years by UN human rights mechanisms on the PTA, in particular the five key benchmarks identified by seven Special Procedures mandates in their communication on 9 December 2021, which they consider as “necessary prerequisites” to ensure the PTA is amended to be compliant with international law obligations.

In June 2021, 16 PTA prisoners nearing the end of their sentences were released under Presidential pardon. On 24 August 2021, the President appointed a three-member Advisory Board, headed by a retired Chief Justice, to which detainees or their representative could apply for review…….

Reports indicate that at least 70 people have been arrested under the PTA for sharing social media posts commemorating victims of the war that included LTTE images or Tamil nationalist iconography. On 18 May, police arrested 10 people near Batticaloa under the PTA for organizing a memorial event; they were finally released on bail on 8 December. A journalist, Murugupillai Kokulathasan, has been detained for 15 months since November 2020 in relation to photos of the LTTE leader appearing on his social media. The Government shared with OHCHR a directive issued by the Inspector General of Police dated 23 October 2021 providing guidance on restricting the use of the PTA and exercising greater discretion in evaluating cases such as, possession of pictures.

In March 2021, new “de-radicalization” regulations were issued that permit arbitrary administrative detention of individuals for up to two years without any legal proceedings for the purposes of ‘rehabilitation’ in relation to violent extremism. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and other experts have warned that the regulations may jeopardize the rights and liberties of persons who may be detained arbitrarily, especially religious and ethnic minorities, and may curtail political dissent with no effective due process guarantees…….

(Please visit our website sundaytimes.lk for the full report)