Issues
The Sri Lankan Case: Rhetoric, reality and next steps
The last few weeks have witnessed increased activity by the Government of Sri Lanka inannouncing various measures recently taken and to be taken to strengthen
Head of the LLRC Mr. C.R.De Silva hands over the final LLRC report to President Rajapakse at his official residence Temple Trees on November 20th 2011
human rights,peace and reconciliation in Sri Lanka including the implementation of some interim andfinal recommendations of its own Lessons Learnt and Reconciliation Commission(LLRC) issued in September 2010 and November 2011, respectively. Any genuine effortto 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 resolutionon 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 anotherploy 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 thestructure of government in addressing human rights violations and accountability issues,the failures of past domestic processes and the need for immediate action by theinternational community.
Government’s Rhetoric and Ground Realities
At the outset, several achievements by the Government since the end of the war must benoted. Government figures indicate over 300,000 internally displaced persons (IDPs)returning to their districts of origin, removal of emergency regulations, some reductionof 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 andEast. On the policy front, the formulation of the National Human Rights Action Plan(NHRAP) is indicative of the Government’s stand on specific human rights issues. Inaddition, the establishment of the LLRC by the present Government in May 2010 as ananswer to the international call for accountability and reconciliation also marked apositive step in identifying the challenges to reconciliation and peace in post-war SriLanka.
While the list is impressive, ground realities show a different story. The following aresome brief points to demonstrate that while on paper the above developments can painta picture of positive change, serious problems persist:
• Violations continue unabated across Sri Lanka, including disappearances, extrajudicial killings, torture and threats to freedom of speech, expression and assembly. Peaceful protests have been met with brutal force resulting in deaths of protesters and threats to human rights defenders and media who have beencritical of violations and Government practices.
•Thousands of persons are still unable to return to their homes and continue tolive in displacement. Some of those who have been able to return to theirdistricts of origin – thereby reducing official IDP figures – are unable to return totheir own homes and continue to live in displacement. Military occupation of private property, presence of land mines, secondary occupation and theacquisition of land for development purposes, disregarding the established legalframework, are some of the reasons for continued displacement.
• While emergency regulations are no longer in existence, the Government lost notime in introducing similar measures under the draconian Prevention of Terrorism Act (PTA). These regulations can be promulgated by the Executive atany time and without reference to Parliament or any oversight mechanism.
• The military and police continue to occupy large tracts of private land in theNorth and East, including the appropriation of landfor ‘ad-hoc’ HSZs, with nolegal rationale provided for such large scale occupation.
• The security of ex-combatants released is questionable when thousands continueto be under surveillance and need to report regularly to the military and police.
• The role of the military in civilian administration continues, including inassuming a dominant role in day-to-day tasks at the village-level such as theregistration and photographing of civilians, approving the holding of functions atthe community-level, approving beneficiary lists and coordinating NGO activitiesin the area.
The extent of militarisation is also evident with the presence of retired military officials in governance structures such as the two Governors forthe North and East respectively, and the Government Agent for Trincomalee district (in the Eastern Province) – all of whom are key officials in theadministration of these areas.
•The National Anthem of Sri Lanka continues to be sung in Sinhala including atofficial events in the predominantly Tamil speaking North and East. Those contesting this practice have been threatened.
There are discrepancies in issuing public documents and notices, which are issuedonly 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 asprovided by Article 22 of the Constitution.
• The NHRAP contains some useful recommendations and timelines forimplementation, but raises questions of process as well as success inimplementation. Several civil society individuals who were part of theconsultations for the NHRAP indicated that their suggestions were not incorporated, contrary to the claim of an inclusive process put forward by the Government. There are also questions as to whether any significantimprovements can be achieved when for example the Ministry of Defence hasbeen identified as the lead agency in implementing the specific provisions relatedto 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 setup to explore and implement both the interim and final recommendations,questions of genuine political will and commitment persist. More than 18 monthsafter the interim recommendations were issued and 4 months after thepresentation of the LLRC report, there has been no demonstrable action on theground.
• 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 allegedcivilian casualties during the final phase of the humanitarian operation and probeas regards Channel 4 video footage…’. There is no public information availableon the terms of reference of such an inquiry, on who is to be investigated, thecharges and the legal framework to be used. Further, the court of inquiry was appointed by the present SLA commander, an actor directly involved in themilitary victory of 2009 and thereby possibly either involved in or complicit in violations documented. Such a process as it stands cannot be consideredindependent.
• While there has been progress regarding economic development including theconstruction of roads, hospitals, schools in the North and East with the supportof key donors, thousands of persons in these areas continue to live indisplacement and are unable to use their own land for livelihood purposes due tomilitary occupation and security surveillance.
Questions and Concerns
The Government has argued for a homegrown solution. In the lead up to the UNHRCsession, the Government also requested more time in order to implementthe LLRCrecommendations. The Government’s position must be considered inlight of pastexperiences, progress made with other domestic processes and the contention that timealone can address grievances. The Government’s positionthat more time is needed mustbe contrasted with other practices where the Government has moved swiftly, such as thepassing of urgent bills, which is a regular practice used to enact legislation with limitedconsultation and transparency. Such practices confirm efficiency on the part of theGovernment when there is political will, raising the questionas to why there is a delay inthe implementation of the recommendations of its own commission. The questions below demonstrate that the call for a domestic process fails to addresssome key questions and concerns. The inability to address these can hamper any futureprocess for justice, accountability and reconciliation.
• What is the status with respect to the implementation of recommendations madeby past commissions of inquiry and committees? (see annexure)
• Why has there been no significant progress with the LLRC’s own interimrecommendations issued 18 months ago? The delay can be contrasted by thespeed 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 theGovernment not sought to initiate public discussions regarding the findings of the LLRC and have the full report translated into Sinhala and Tamil? Why hasthe Government not made public a road map for implementation, 4 months afterreceiving the report?
• How can any domestic investigation be independent in the present context whenappointees to independent institutions (including the National Human RightsCommission and Attorney General) are by the Executive as provided under theEighteenth 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 General’s Department be expected to initiate independentinvestigations 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 implementation of the NHRAP, more than 5 months after it was approved. Why was there a delay to commence implementation of the Government’s ownNHRAP?
• 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 Government’s own All Party Representative Committee (APRC), which provided a consensus report in 2010to 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 theground. 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 inthe present political context. The final report of the IIGEP found a ‘lack of political will to support a search for the truth’, highlighting the present dilemma faced by domestic processes and a problem likely to be faced by any future entity unlessfundamental systematic flaws are addressed.
The Need for Action
A common element for any action by the GOSL in recent times is directly linked tointernational 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 withinthe UNHRC on Sri Lanka has provoked a torrent of promises by the Government of SriLanka – the most recent being the promise to enact a witness protection bill, which wasa promise first made as far back as 2007 by the then Minister for Human Rights andpresent envoy on the same subject, Minister Mahinda Samarasinghe.
Recent weeks have also witnessed an unprecedented level of advocacy in Geneva and key capitals withsignificant resources spent merely to keep the international community at bay, eventhough 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 missedopportunities to address lasting peace and reconciliation. Worthless promises anddelaying tactics by the Government of Sri Lanka reinforce the culture of impunity rather than actually addressing the problems on the ground. Many domestic processes havebeen established during the period of this Government (refer to annexure) but with noimprovement to human rights protection on the ground. In light of the long list of faileddomestic entities and the lack of genuine progress, it is imperative to revisit the UNHRC.
The joint statement at the end of the UN Secretary General’s visit to Sri Lanka in May 2009 sets out specific pledges including the agreement by the Government to addressaccountability issues.The 11th Special Session of the UNHRC in May 2009 missed theopportunity to address human rights and humanitarian issues in Sri Lanka.
The inability of the UNHRC and its members to address human rights violations in 2009 can andmust be corrected now. Member states and others of the UNHRC need to critically examine the violations, culture of impunity and inability to have an independentdomestic process in a highly politicised and militarised Sri Lanka. It is time for theUNHRC 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.
See original statement here
– CPA-