The Sri Lankan Case: Rhetoric, Reality and Next Steps?

Centre for Policy Alternatives March 2012 The last few weeks have witnessed increased activity by the Government of Sri Lanka in announcing various measures recently taken and to be taken to strengthen human rights, peace and reconciliation in Sri Lanka including the implementation of some interim and final recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC) issued in September 2010 and November 2011, respectively. Any genuine effort to address human rights, governance, a political solution and reconciliation is welcome. Yet the suddenness of such statements raises questions of timing and the genuine will of the Government. They should be seen against the backdrop of the impending resolution on Sri Lanka at the 19th Session of the United Nations Human Rights Council (UNHRC). The heightened activity raises the question as to whether these measures are yet another ploy to distract its critics from the absence of a real plan of implementation for the LLRC recommendations. This short note looks at GOSL rhetoric and demonstrates the fundamental flaws in the structure of government in addressing human rights violations and accountability issues, the failures of past domestic processes and the need for immediate action by the international community. Governments Rhetoric and Ground Realities At the outset, several achievements by the Government since the end of the war must be noted. Government figures indicate over 300,000 internally displaced persons (IDPs) returning to their districts of origin, removal of emergency regulations, some reduction of High Security Zones (HSZs), rehabilitation and release of over 10,000 former LTTE ex-combatants and the reconstruction of infrastructure in the war ravaged North and East. On the policy front, the formulation of the National Human Rights Action Plan (NHRAP) is indicative of the Governments stand on specific human rights issues. In addition, the establishment of the LLRC by the present Government in May 2010 as an answer to the international call for accountability and reconciliation also marked a positive step in identifying the challenges to reconciliation and peace in post-war Sri Lanka. While the list is impressive, ground realities show a different story. The following are some brief points to demonstrate that while on paper the above developments can paint a picture of positive change, serious problems persist: Violations continue unabated across Sri Lanka, including disappearances, extra judicial killings, torture and threats to freedom of speech, expression and assembly.1 Peaceful protests have been met with brutal force resulting indeaths of

The situation in Sri Lanka an unsigned statement from Sri Lankan civil society, February 2012http://www.scribd.com/fullscreen/82184215-The-Situation-in-Sri-Lanka?access_key=key3szuxcd2ta360nmtijl

protesters and threats to human rights defenders and media who have been critical of violations and Government practices.2 Thousands of persons are still unable to return to their homes and continue to live in displacement. Some of those who have been able to return to their districts of origin - thereby reducing official IDP figures - are unable to return to their own homes and continue to live in displacement.3 Military occupation of private property, presence of land mines, secondary occupation and the acquisition of land for development purposes, disregarding the established legal framework, are some of the reasons for continued displacement. While emergency regulations are no longer in existence, the Government lost no time in introducing similar measures under the draconian Prevention of Terrorism Act (PTA).4 These regulations can be promulgated by the Executive at any time and without reference to Parliament or any oversight mechanism. The military and police continue to occupy large tracts of private land in the North and East, including the appropriation of landfor ad-hoc HSZs, with no legal rationale provided for such large scale occupation.5 The security of ex-combatants released is questionable when thousands continue to be under surveillance and need to report regularly to the military and police.6 The role of the military in civilian administration continues, including in assuming a dominant role in day-to-day tasks at the village-level such as the registration and photographing of civilians, approving the holding of functions at the community-level, approving beneficiary lists and coordinating NGO activities in the area.7 The extent of militarisation is also evident with the presence of retired military officials in governance structures such as the two Governors for the North and East respectively, and the Government Agent for Trincomalee district (in the Eastern Province) - all of whom are key officials in the administration of these areas. The National Anthem of Sri Lanka continues to be sung in Sinhala including at official events in the predominantly Tamil speaking North and East. 8 Those contesting this practice have been threatened.

Fisherman killed in Chilaw protest, 15 February 2012, http://www.dailymirror.lk/news/16832fisherman-killed-in-chilaw-protest.html; Fishermen leader in hiding after threats, 26 February, 2012, http://www.bbc.co.uk/sinhala/news/story/2012/02/printable/120226_herman_hiding.shtml

3Land

in the Northern Province: Post-War Politics, Policy and Practices- Bhavani Fonseka & Mirak Raheem, CPA, December 2011. 4 CPA Statement on the new Regulations under the Prevention of Terrorism Act, 26 September 2011 5Land in the Northern Province: Post-War Politics, Policy and Practices- Bhavani Fonseka & Mirak Raheem, CPA, December 2011; Land in the Eastern Province: Politics, Policy and Conflict- Bhavani Fonseka & Mirak Raheem, CPA, May 2010. Information received from local groups working in the North, January 2012 in the Northern Province: Post-War Politics, Policy and Practices- Bhavani Fonseka & Mirak Raheem, CPA, December 2011 8 Based on information received from interviews in the North, February 2012
6 7Land

There are discrepancies in issuing public documents and notices, which are issued only in Sinhala. The inability and/or unwillingness to have notices and official documents in Tamil has been challenged in court as a violation language rights as provided by Article 22 of the Constitution.9 The NHRAP contains some useful recommendations and timelines for implementation, but raises questions of process as well as success in implementation. Several civil society individuals who were part of the consultations for the NHRAP indicated that their suggestions were not incorporated, contrary to the claim of an inclusive process put forward by the Government. 10 There are also questions as to whether any significant improvements can be achieved when for example the Ministry of Defence has been identified as the lead agency in implementing the specific provisions related to torture. The LLRC came out with a useful list of recommendations on human rights, governance and reconciliation, but its findings particularly on accountability are weak and there are omissions in other areas. Although committees have been set up to explore and implement both the interim and final recommendations, questions of genuine political will and commitment persist. More than 18 months after the interim recommendations were issued and 4 months after the presentation of the LLRC report, there has been no demonstrable action on the ground. A court of inquiry was established on 2 January 2012 by the Sri Lanka Army (SLA) to inquire into observations made by the LLRC in its report on alleged civilian casualties during the final phase of the humanitarian operation and probe as regards Channel 4 video footage.11 There is no public information available on the terms of reference of such an inquiry, on who is to be investigated, the charges and the legal framework to be used. Further, the court of inquiry was appointed by the present SLA commander, an actor directly involved in the military victory of 2009 and thereby possibly either involved in or complicit in violations documented. Such a process as it stands cannot be considered independent. While there has been progress regarding economic development including the construction of roads, hospitals, schools in the North and East with the support of key donors, thousands of persons in these areas continue to live in displacement and are unable to use their own land for livelihood purposes due to military occupation and security surveillance.

One of the violations challenged in fundamental rights petitions filed related to the Navaanthurai incidents in Jaffna in August 2011. (SCFR 384/2011 and others) 10 Feedback received from discussions with civil society in December 2011 and January 2012. 11 The appointment was only made public by a statement issued on 16 February 2012.

Questions and Concerns The Government has argued for a homegrown solution.12 In the lead up to the UNHRC session, the Government also requested more time in order to implementthe LLRC recommendations. The Governments position must be considered inlight of past experiences, progress made with other domestic processes and the contention that time alone can address grievances. The Governments positionthat more time is needed must be contrasted with other practices where the Government has moved swiftly, such as the passing of urgent bills, which is a regular practice used to enact legislation with limited consultation and transparency. Such practices confirm efficiency on the part of the Government when there is political will, raising the questionas to why there is a delay in the implementation of the recommendations of its own commission. The questions below demonstrate that the call for a domestic process fails to address some key questions and concerns. The inability to address these can hamper any future process for justice, accountability and reconciliation. What is the status with respect to the implementation of recommendations made by past commissions of inquiry and committees? (see annexure) Why has there been no significant progress with the LLRCs own interim recommendations issued 18 months ago? The delay can be contrasted by the speed with which the Government introduced urgent bills such as the Eighteenth Amendment to the Constitution, which was enacted within a few days. Following the submission of the LLRC report to Parliament, why has the Government not sought to initiate public discussions regarding the findings of the LLRC and have the full report translated into Sinhala and Tamil? Why has the Government not made public a road map for implementation, 4 months after receiving the report? How can any domestic investigation be independent in the present context when appointees to independent institutions (including the National Human Rights Commission and Attorney General) are by the Executive as provided under the Eighteenth Amendment to the Constitution? Can witnesses and victims feel confident about providing evidence to any domestic process in the absence of a functioning witness and victim protection mechanism? How can the Attorney Generals Department be expected to initiate independent investigations and indictments when it falls within the purview of the Executive? Why has the Government not submitted the NHRAP to Parliament? Recently the Government announced the creation of a committee to monitor the

12Minister

G. L. Peiris tells intl community: Sri Lanka for home grown solution, Daily News, 25 February 2012

implementation of the NHRAP, more than 5 months after it was approved.13 Why was there a delay to commence implementation of the Governments own NHRAP? How can the proposed Parliament Select Committee (PSC) be considered a genuine effort to provide for a political solution? This is in light of the lack of progress made with the findings of the Governments own All Party Representative Committee (APRC), which provided a consensus report in 2010 to which the Government has not yet responded to, and the 18 rounds of bilateral talks held between the Government and the Tamil National Alliance (TNA) in 2011-2012.

Past commissions and committees appointed by the present government (see annexure) demonstrate the long list of entities appointed, but with no tangible change on the ground. The experience of the International Independent Group of Eminent Persons (IIGEP), invited by the present government to observe a local commission of inquiry, confirms that merely having an international presence for a local process will not work in the present political context.14 The final report of the IIGEP found a lack of political will to support a search for the truth15 , highlighting the present dilemma faced by domestic processes and a problem likely to be faced by any future entity unless fundamental systematic flaws are addressed.

The Need for Action A common element for any action by the GOSL in recent times is directly linked to international pressure and as a result the role played by some international actors cannot be discounted. The LLRC is one such example. The present call for a resolution within the UNHRC on Sri Lanka has provoked a torrent of promises by the Government of Sri Lanka the most recent being the promise to enact a witness protection bill16, which was a promise first made as far back as 2007 by the then Minister for Human Rights and present envoy on the same subject, Minister Mahinda Samarasinghe.17 Recent weeks have also witnessed an unprecedented level of advocacy in Geneva and key capitals with significant resources spent merely to keep the international community at bay, even though those resources could have been better spent on addressing the growing problems within Sri Lanka. Civil society in Sri Lanka has witnessed countless years of violence and missed opportunities to address lasting peace and reconciliation. Worthless promises and delaying tactics by the Government of Sri Lanka reinforce the culture of impunity rather
13Sri Lanka appoints cabinet sub-committee to monitor implementation of Human Rights Action Plan proposals, 11 February 2012, http://www.lankanewspapers.com/news/2012/2/74388.html

14A

Commentary on the Commission of Inquiry and the International Independent Group of Eminent Persons, CPA Policy Brief No. 1, 2007

Final Report of the IIGEP, 15 April 2008 to Enact Witness Protection Bill- Daily Mirror, 5 March 2012 17 Sri Lanka to enact laws to protect the victims and witnesses http://www.colombopage.com/archive_07/October27144714SL.html
15 16Government

soon-

27

October

2007,

than actually addressing the problems on the ground. Many domestic processes have been established during the period of this Government (refer to annexure) but with no improvement to human rights protection on the ground. In light of the long list of failed domestic entities and the lack of genuine progress, it is imperative to revisit the UNHRC. The joint statement at the end of the UN Secretary Generals visit to Sri Lanka in May 2009 sets out specific pledges including the agreement by the Government to address accountability issues.18 The 11th Special Session of the UNHRC in May 2009 missed the opportunity to address human rights and humanitarian issues in Sri Lanka.19 The inability of the UNHRC and its members to address human rights violations in 2009 can and must be corrected now. Member states and others of the UNHRC need to critically examine the violations, culture of impunity and inability to have an independent domestic process in a highly politicised and militarised Sri Lanka. It is time for the UNHRC not just to discuss the human rights situation in Sri Lanka, but also to examine ways of supporting Sri Lanka and its citizens achieve a lasting peace.

18

Joint statement by un Secretary-General, government http://www.un.org/News/Press/docs/2009/sg2151.doc.htm

of

Sri

Lanka,

26

May

2009,

1911th

special session of the Human Rights Council: "The human rights situation in Sri Lanka" - Tuesday 26 and 27 May 2009- http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/11/index.htm