[HRC review on Sri Lanka © S. Deshapriya]
In concluding remarks, at the completion of its consideration of the fifth periodic report of Sri Lanka on its implementation of the provisions of the International Covenant on Civil and Political Rights. Nigel Rodley, Chairman of the Human Rights Committee, said the Committee recognized that Sri Lanka had come to the end of a bloody war fighting against a body that did not hesitate to resort to terrorist methods to achieve its ends and it was good that many displaced persons had been resettled. However, outstanding issues included the reversal of the burden of proof for forced confessions, systematic use of torture, enforced disappearances, impunity and the ruling that the consideration of individual communications by the Committee was tantamount to external jurisdiction.
Press release of the HRC:
HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF SRI LANKA
The Human Rights Committee today completed its consideration of the fifth periodic report of Sri Lanka on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Ravinatha Aryasinha, Permanent Representative of Sri Lanka to United Nations Office at Geneva, said although LTTE terrorist group was militarily defeated in May 2009 the threat of terrorism had not abated. Therefore Sri Lanka had to be continuously vigilant to safeguard against any resurgence of terrorism in the country. Successive Governments had faced the challenge of preserving human rights in the context of violent acts of terrorism but during the entire conflict the Government had continuously supplied food, medicines and other essential requirements to the citizens in terrorist-dominated areas. Most of all, the Government had succeeded in restoring to the entirety of Sri Lanka’s population the most important right, the right to life. He also said that Sri Lanka was fully committed to the protection of human rights defenders and media personnel or institutions.
During the discussion, Committee Experts asked a wide array of questions on the subject of reprisals against human rights defenders, discrimination, arbitrary arrest and persecution of journalists and media workers, allegations of widespread enforced disappearances and extra-judicial killings, and the use of torture. Serious concern was expressed about the reversal of the burden of proof to the detainee to prove he had been forced to make a forced confession. The ruling of the Singeraser case that the consideration of individual communications by the Committee was tantamount to external jurisdiction was discussed. Other issues raised included overcrowding in prisons and pre-trial detention, impunity, discrimination against women and abortion in cases of rape, and discrimination against minorities including the Tamils and Muslims.
In concluding remarks, Nigel Rodley, Chairman of the Committee, said the Committee recognized that Sri Lanka had come to the end of a bloody war fighting against a body that did not hesitate to resort to terrorist methods to achieve its ends and it was good that many displaced persons had been resettled. However, outstanding issues included the reversal of the burden of proof for forced confessions, systematic use of torture, enforced disappearances, impunity and the ruling that the consideration of individual communications by the Committee was tantamount to external jurisdiction.
Mr. Aryasinha, in concluding remarks, said the transition from a country fighting terrorism for 30 years to five years post conflict was not easy and he hoped the Committee would appreciate that, and also that Commissions, including the Commission of Inquiry on missing persons, often took a long time to complete their mandates.
The delegation of Sri Lanka included representatives of the Bureau for Reconciliation, Ministry of Resettlement, Ministry of Child Development and Women’s Affairs, Ministry of Rehabilitation and Prison Reform, Ministry of Law and Order, Attorney General’s Department, Ministry of Defence and Urban Development, Ministry of External Affairs and the Permanent Mission of Sri Lanka to the United Nations Office at Geneva.
The next public meeting of the Committee will take place at 3 p.m. on Wednesday, 8 October when it will start its consideration of the second report of Burundi (CCPR/C/BDI/2).
The Committee is reviewing the fifth periodic report of Sri Lanka (CCPR/C/LKA/5).
Presentation of the Report
RAVINATHA ARYASINHA, Permanent Representative of Sri Lanka to the United Nations Office at Geneva, said Sri Lanka’s last formal interaction with the Committee took place in 2003 when a short cessation of hostilities prevailed between the Government and LTTE, the terrorist organization which at the time had unlawful control of one third of the country and two thirds of its coastline. However LTTE only used the period to re-arm and re-group and resumed its killing spree, most prominently by assassinating Lakshman Kadirgamar, the former Foreign Minister of Sri Lanka in August 2005. By July 2007 the Government had liberated the people of the entire Eastern Province from the control of LTTE, which was followed by a two-year military campaign in the Northern Province. The Sri Lankan security forces defeated LTTE in May 2009, bringing to safety through safe corridors almost 300,000 civilians, including over 12,000 ex-combatants.
Although LTTE was militarily defeated in May 2009 the threat of terrorism had not abated. Its overseas network, funded by some sections of the expatriate Tamil community, continued to pose a medium and long-term security challenge to Sri Lanka and the region. Therefore Sri Lanka had to be continuously vigilant to safeguard against any resurgence of terrorism in the country. As the use of terrorism to secure political and ideological objectives including a separate State remained a possibility, the time was not yet right to repeal the Prevention of Terrorism Act. Successive Governments had faced the challenge of preserving human rights in the context of violent acts of terrorism but during the entire conflict the Government had continuously supplied food, medicines and other essential requirements to the citizens in terrorist-dominated areas. Most of all, the Government had succeeded in restoring to the entirety of Sri Lanka’s population the most important right, the right to life.
The post-conflict challenges faced by Sri Lanka today included the humanitarian needs of the people and the restoration of the socio-economic, civil and political rights of the people in the North and the East. The democratic framework, including the civil administration system, had been restored and made fully functional in those areas. Provincial Council elections were held in the Northern Province for the first time in September 2013 and today the Tamil National Alliance was in control of provincial administration in the Northern Province. Measures had been taken to ensure sustainable peace and reconciliation and rapid development as an important step towards the full enjoyment of civil and political rights by all. Action was also being taken in de-mining, resettlement, rehabilitation, reconstruction, socio-economic development and political empowerment.
Sri Lanka was fully committed to the protection of human rights defenders and media personnel or institutions, to whom the full gamut of constitutional guarantees was available. While certain cases of violence against media personnel remained unresolved, there was no restriction on what may be reported by the press. The Government was pursuing investigations into current cases of alleged attacks on media personnel and institutions; due process was required for prosecution. The wide spectrum of views on display in Sri Lanka was amply demonstrated by its print and electronic media, most of which was fiercely critical of the Government, said Mr. Aryasinha. Sometimes vituperative views may be expressed that were targeted at individuals but that was recognized as the price to be paid for upholding the democratic norms of a free and vibrant media. No press censorship had been imposed during the period of the present Government. The law on criminal defamation had been repealed and grievance mechanisms were being strengthened. Out of 217 newspapers registered in Sri Lanka in 2014, 31 were State owned and 186 were private sector owned. Of the 54 radio stations, 18 were State owned and 36 were privately owned; and of the 25 television channels, seven were State owned and 18 were private sector owned.
As in all countries that had communities with different religious affiliations, unfortunate isolated incidents could occur, and as such, there had been sporadic incidents focusing on places of worship of all four religions. Whenever an incident of that nature occurred the Government was quick to condemn and take action. The police were investigating the incidents of June 2014 in Aluthgama and Beruwala with a view to bringing the suspects before the courts. So far 148 people had been arrested, of whom 116 were Sinhalese and 32 were Muslim. Three people had been remanded, three granted police bail and 142 granted court bail. The police had reported facts to the court in 461 cases on the basis of complaints made, added Mr. Aryasinha.
Recommendations made by the Sri Lanka Lessons Learnt and Reconciliation Commission (LLRC) were being implemented, and in 2013 a three-member Presidential Commission of Inquiry on Missing Persons in the Northern and Eastern Provinces was appointed. In September 2014 a draft bill titled ‘Assistance to and Protection of Victims of Crime and Witnesses’ was presented to Parliament. The Committee also heard details on how Sri Lanka continued to meet its international obligations, including by ratifying international human rights treaties and engaging with United Nations bodies, notably participation in two Universal Periodic Review cycles and visits by former High Commissioner for Human Rights Navi Pillay and the Special Rapporteurs on the rights of internally displaced persons and on migrants.
Note by the Chairperson
NIGEL RODLEY, Committee Chairperson, noted that unfortunately the State party’s replies to the list of issues had not been translated in time for the session. He welcomed the delegation’s offer to give an oral translation of its written replies in today’s meeting.
Summary of Sri Lanka’s Response to the List of Issues
Summarizing the State party’s responses to the list of issues, in the absence of translated documents, a representative of the Attorney General’s Department spoke in detail about a Supreme Court decision in 2008 on the application of the Covenant, noting that the Court permitted public interest litigation on matters that transcended the infringement of individual rights. Emergency regulations in place during the 30 year armed conflict were allowed to lapse on 31 August 2011, but the Prevention of Terrorism Act remained in force due to the persistent threat of the resurgence of terrorism. The delegate spoke about restorative justice and rehabilitation of victims into society, noting that so far over 200 people had been recommended by the Attorney General for rehabilitation, under judicial supervision. She also briefed on the case of Mr. Sarath Fonseka, tried twice by a Court Martial for offences including disgraceful conduct in awarding a contract to his son-in-law, and sentenced to a 2.5 year prison term. On 21 May 2012 the President granted Mr. Fonseka a pardon and released him from prison.
A representative of the Ministry of Rehabilitation and Prison Reforms spoke about child soldiers and prison overcrowding. Today 96.9 per cent of the 12,288 former LTTE combatants under court order had been rehabilitated and integrated into society. Only 140 were currently undergoing rehabilitation and 85 remained under legal proceedings. All 594 LTTE child combatants, who were treated as victims and not perpetrators, were reunited with their families within one year after their rehabilitation. Subsequently Sri Lanka was delisted from Annex II of the United Nations Security Council resolution 1612 on Children in Armed Conflict, reflecting closure on the issue. Prison overcrowding was recognized by the Government as an important challenge that needed to be addressed. Two new prisons had been constructed and others were being renovated. There were also programmes to educate prison officials on the human rights of prisoners.
A representative of the Ministry of Child Development and Women’s Affairs briefed the Committee on how discrimination against women had been eradicated in Sri Lanka, largely due to high levels of educational attainment by girls and recognition of women in all areas of society as equal partners. Women enjoyed equality with men in both public and political life, although the percentage of women in politics remained low. The Government was considering raising the minimum age of criminal responsibility from eight years to be in line with international standards.
A representative of the Bureau for Reconciliation briefed on the Government’s policies and programmes to resettle the internally displaced persons following the conflict, and said today 98 per cent of affected people had been resettled. The Government considered reconciliation to be a multi-faceted task that was country specific. It took a holistic approach which had already contributed to the realization not only of development perspectives but also the economic, social and cultural as well as civil and political rights of the people.
Questions by the Experts
YUJI IWASAWA, Committee Member acting as Rapporteur for the report of Sri Lanka, welcomed the substantial delegation and said the Committee took note that it was composed of various qualified members from different Government departments. He thanked the delegation for submitting its response to the list of issues in advance and summarizing them orally, as they would form the basis of the dialogue.
Since its last report in 2003 Sri Lanka had undergone many changes, from a ceasefire to an intensive armed conflict. Today it faced post-conflict challenges including reconstruction, reconciliation and accountability. The Committee was seriously concerned by human rights violations that may have been committed by any party to the conflict, and by the status of the rule of law. Sri Lanka had a very active civil society, which Mr. Iwasawa noted was an indication of a society’s openness and democracy. He commented that the Committee had appointed a Rapporteur on reprisals because it took the issue very seriously, and it expected the State party to do the same.
The Covenant had not been incorporated into domestic law and had no legal bearing in Sri Lanka – how could the rights contained in it be upheld in Sri Lanka asked Mr. Iwasawa. In the 2006 case Nallaratnam Singarasa versus Attorney General five judges of the Supreme Court ruled that Sri Lanka’s accession to the Optional Protocol of the Covenant was in violation of the constitution, and that only courts and tribunals set up under the constitution could vindicate the rights of the people of Sri Lanka. Since that decision Sri Lanka no longer cooperated with the Committee’s individual communications procedures. The Committee had adopted 14 views on violations of the Covenant by the State party and asked about the lack of implementation of those views, despite the State party’s legal obligation following its ratification of the Optional Protocol to the Covenant in 1997. What actions had been taken regarding the recommendation for a constitutional amendment to ensure the right to privacy, the right to information and the right to life within one year, asked Mr. Iwasawa.
Concerning counter-terrorism regulations an Expert noted that in June 2010 the State party withdrew most of its derogations to the Covenant, but maintained one against Article 9 regarding criminal detainees and the prevention of mistreatment in custody. How did the State party justify its continuation of a derogation when there was no longer a state of emergency? He also raised allegations of the torture of persons detained under the Prevention of Terrorism Act. The Committee was concerned that the same Act was used to detain human rights defenders. Furthermore, the Act reversed the burden of proof to that of the detainee to prove he had been forced to make a forced confession or other violation. That was against the Covenant; how could a detainee possibly prove that when the authorities held the power and the evidence?
Regarding habeas corpus an Expert noted that there were 133 pending cases and asked how many cases had been filed in total and how many cases had been granted release. He also asked when the Special Detention Regime under the Act would be repealed.
Enforced disappearances and extra-judicial killings continued to be a serious issue in the State party well beyond the end of the conflict. The United Nations Working Group on Enforced Disappearances said there were more than 5,000 outstanding cases as well as new cases. There was information that the military, police, and paramilitary groups under the control of the military, were involved in such acts known as “white van abductions” in which activists and journalists critical of the Government were abducted and then later found dead. What was being done to stop such abductions and find the whereabouts of disappeared persons? The Presidential Commission on Disappearances was competent to investigate cases between 1990 and 2009 in the Northern and Eastern Provinces – was it also able to investigate cases after 2009 and in other areas of the country, such as Colombo?
An Expert commended the five billion Rupees spent on the rehabilitation of former LTTE combatants but said the Committee had been informed that they were not provided with any useful training or support in the rehabilitation centres and were subject to lengthy interrogation. He also asked about the mobility of former combatants and persistent surveillance of them.
More information on sexual violence during and after the conflict was requested by an Expert who said the Committee had reports of the escalation of sexual violence against women in the Northern and Eastern Provinces, particularly against war widows, former female combatants and single women.
Discrimination against women was raised by an Expert who quoted the words of a high-level official who had said women should not be appointed to senior office as “they constantly fight and slander each other”. How could such stereotypical and discriminatory views be tackled in order to promote gender equality in public life? The Inter-Parliamentary Union’s annual ranking of women’s representation in parliaments placed Sri Lanka at 125 out of 132 countries reviewed. Only 13 of 225 Members of Parliament were women, which was a serious concern to the Committee, as it was to the Committee on the Elimination of Discrimination against Women. The Expert also asked about the status of the draft Women’s Bill of Rights.
The State party was commended for raising the minimum age of marriage to 18 years for both women and men, and the prohibition of polygamy. However the Committee was concerned that child marriage and polygamy were still permitted under the Muslim Personal Law. Were there any plans to amend the Muslim Marriage and Divorce Act and were Muslim women being consulted on the issue?
Violence against women including domestic violence was raised by an Expert. The adoption of the 2005 Domestic Violence Act was welcomed but violence against women was still a major problem and impunity prevailed. Were women aware of their rights under the constitution and laws of the land? Were the attitudes of political leaders a problem, or the lack of training of law enforcement officials on the issue? He quoted a statement by a high-profile political leader that “violence in the home is only until the rice is cooked” and asked what was being done to change stereotypical attitudes, including to rape. Would the State party consider criminalizing marital rape? So far five out of 39 reported rape cases were being prosecuted, which was only 12 per cent.
Regarding the rights of lesbian, gay, bisexual, transgender and intersex people, an Expert expressed disappointment at the short reply of the State party, but commended the State party on the interpretation of the equality principle in Article 12 of the constitution as also covering discrimination on the basis of sexual orientation. What steps was Sri Lanka planning to take to make that implicit provision explicit? The Committee had been informed that in both law and practice lesbian, gay, bisexual, transgender and intersex people in Sri Lanka suffered discrimination, arbitrary arrests and other violations in both the public and domestic spheres.
Abortion was criminalized except when the life of a mother was at risk, without exceptions in cases of incest, rape or for therapeutic reasons. The Committee continued to be concerned about unsafe abortions, which caused 10 per cent of maternal deaths. Teenagers and women in rural areas were most affected because of the lack of access to contraception and reproductive health and family planning information. What steps were being taken to improve access to contraceptives?
On accountability and impunity for human rights violations by both State and non-State actors, an Expert referred to the series of broadcasts by television company Channel 4 on the final months of the civil war which had numerous findings of serious human rights violations. Had the Sri Lanka Army Court of Inquiry undertaken any investigations into those very concrete allegations, for instance regarding the shelling of civilians, extra-judicial executions, and sexual assaults against women. Had anyone been prosecuted on either side as a result? Was it true that a report by the Court of Inquiry had been kept private? He also asked about a case in which 17 staff of a French non-governmental organization were allegedly killed, and whether the case was ever investigated.
Under international law States must prosecute suspected perpetrators of human rights violations, recalled an Expert. However, Paragraph 3 of Article 35 of the Sri Lankan constitution provided virtual, total immunity to Heads of State. Was that Article consistent with the principles of international law?
Questions were asked about the independence, impartiality, mandate and work of the Sri Lankan Lessons Learnt and Reconciliation Commission (LLRC). The delegation was asked to give an update on the progress made in implementing the recommendations of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka. Some 20,000 complaints had been filed to the Commission which was scheduled to complete its work in February 2015 – that appeared to be an unrealistic timeline for it to seriously consider all of those complaints. An Expert also asked about witness protection measures and whether it was true that the military was responsible for registering complaints to the Commission. Would the Government cooperate with the new independent fact-finding mission established by the Human Rights Council?
Response by the Delegation
On how long the Prevention of Terrorism Act would be in place for, a delegate said countries had to act within the law but proportionate to the threat. Sri Lanka was taking note of the spread of terrorism in Iraq and Syria today and devising remedies. Although the Government had militarily defeated LTTE its overseas terrorism network was active and a threat to Sri Lanka. He cited several cases and noted that India, United States, European Union and others continued to keep LTTE on their terrorist lists, and gave the example of Swiss police investigating operations in Switzerland by former LTTE terrorists to channel funds. It was also noted that Sri Lankan security forces continued to uncover buried arms stashes which could be used to fuel insecurity.
Detainees could challenge the lawfulness of their detention by invoking Habeas Corpus in the High Court or by lodging a human rights application in the Supreme Court, and there were a series of current cases in that regard. The Government continued to appraise the situation of people held under the Prevention of Terrorism Act, particularly with regard to their rehabilitation.
Confessions made by persons detained under the Prevention of Terrorism Act were only admissible in court following a strict procedure to ensure that those confessions were made voluntarily. Usually the burden of proof was on the prosecution. However, under the Prevention of Terrorism Act it shifted to the accused, which was near universal practice by many States in common-law jurisdiction.
Details of several recent and ongoing prosecutions of cases of unlawful use of force and violations of the right to life by State agents, the military and paramilitary groups reporting to the military such as extrajudicial killings, arbitrary detention and enforced disappearances were read out to the Committee. The cases detailed included cases of police officers being prosecuted for charges of arbitrary killings, murder and attempted murder, and abduction, amongst others.
The Government of Sri Lanka rejected assertions regarding consistent reports of unlawful use of force and violations of the right to life by State agents, said a delegate, who emphasized that wherever credible evidence was available steps were taken to prosecute police officers who were responsible for arbitrary killings.
Details of current cases involving the prosecution of law enforcement officials were provided as follows: a Police Sub-Inspector with another person had been indicted for killing a witness in a pending case, and his High Court trial was in progress and was currently adjourned for the conclusion of the defence case. In relation to the shooting incident at Katunayake in May 2011, steps had been taken to institute non-summary proceedings before the Magistrate of Negombo against two police officers on charges of murder and attempted murder; the inquiry was in progress. Four police officers, including an Inspector, had been convicted by a ‘Trial at Bar’ (a panel of three judges of the High Court) in August 2011 for conspiracy, abduction and murder of two individuals. On 2 April 2014 a five-judge bench of the Supreme Court dismissed the appeals by all four accused and affirmed the conviction and sentence. And finally, the delegate confirmed that the trial of a Deputy Inspector General of the Police who had been indicted along with several others on charges of conspiracy, abduction and murder before a Trial at Bar was currently in progress at the High Court in Colombo. He also noted that in a recently decided case of C. Earl Fernando and H.P.Premarathna vs the Attorney General concerning a disappeared person, the court affirmed the conviction and sentence against the police officer.
On the case of the alleged killing of 17 persons working for a French non-governmental organization Action contre la Faim in Northern Sri Lanka in 2006, a delegate said that meetings had been held with the Attorney General who had expressed willingness to accept the assistance of the Embassy of France in obtaining the statements of witnesses known to them, whether those witnesses were in France or Sri Lanka. The process was ongoing.
On the Army Court of Inquiry, a delegate informed the Committee that the Commander of the Army appointed a Court of Inquiry to look into observations made by the Lessons Learnt and Reconciliation Commission in its report on alleged civilian casualties during the final phase of the Humanitarian Operation and examine the allegations in the Channel 4 video footage, irrespective of its authenticity or otherwise.
The failure of the producers of the Channel 4 video footage to provide the original footage, along with information on the possible locations and dates, as requested had impeded the progress of the investigation. Furthermore, the producers were invited to present their footage to the LLRC but did not respond. It was unfortunate that the Sri Lankan military continued to be unfairly accused on the basis of baseless and uncorroborated evidence, commented the Head of the Delegation.
The five-member fact-finding Court of Inquiry was appointed on 2 January 2012 and was headed by a Major General. The Court of Inquiry concluded its report and gave it to the Commander of the Army on 15 February 2013. The report could not be made public because it was a classified document meant for internal use only. However, a summary of the findings was available online.
The Court of Inquiry report concluded that LTTE terrorists had acted with impunity by committing various unlawful acts including the use of civilians as human shields, placing of artillery and other heavy weapons amidst civilian concentrations and illegal conscriptions of civilians including children and old people for combat reasons. It conclusively established that the Humanitarian Operation was conducted strictly in accordance with the President’s “Zero Civilian Casualty” directive, and even when LTTE terrorists fired from No Fire Zones, commanders refrained from firing back. Furthermore, despite heavy bombardments by LTTE terrorists Sri Lankan Army troops had refrained from firing heavy weapons, a self-imposed moratorium which resulted in heavy casualties to Army troops.
The Court of Inquiry report also found evidence that at all stages of the Humanitarian Operation the Sri Lanka Army behaved as a well-disciplined military force observing international humanitarian law and the laws of war. Those who came under the Army’s control, including LTTE cadres, were treated humanely in observation of international humanitarian law. On the contrary, shocking details of war crimes committed by LTTE terrorists were revealed in the report including the use of human shields, summary executions of civilians, and forced conscription of children.
The international community failed in its duty to stop the war crimes committed by LTTE terrorists, the Court of Inquiry also found. In conclusion, although the evidence presented did not attach any blame to any Sri Lankan Army member, if new evidence was presented it would be investigated, noted the delegate.
The report of the United Nations Secretary-General Panel of Experts was a discredited document containing unverified and unsubstantiated information from questionable sources said the Head of the Delegation. The report was meant to be a private advisory document for the Secretary-General and had not received the endorsement of the intergovernmental process and had no status whatsoever in international terms. For that reason it was a document without number and had not been circulated within the United Nations system. The Panel of Experts themselves made clear that the assertions in the report were unsubstantiated, and that although they had been invited to make a presentation to the LLRC, they had chosen not to.
The Commission of Inquiry to Investigate into Complaints regarding Missing Persons in the Northern and Eastern Provinces was appointed based on recommendations by the LLRC on 15 August 2013, and its mandate was extended in August 2014 to examine circumstances which led to civilian loss of life during the conflict. The Commission had met regularly with the International Committee of the Red Cross (ICRC) and the United Nations Development Programme (UNDP) and gained their views on matters relating to missing persons at the end of a conflict. Five international experts had been appointed to an Advisory Council Commission of Inquiry, added the delegate.
Regarding Human Rights Council Resolution 25/1 which established a Commission of Inquiry on Sri Lanka, the Head of the Delegation said Sri Lanka believed it had an unwarranted mandate, as did 22 like-minded States. Instead the Office of the High Commissioner for Human Rights should contribute to a State’s own efforts regarding the promotion and protection of human rights.
On marital rape a delegate said although the act of sexual intercourse without a wife’s consent was not a crime, the Penal Code was amended to consider it rape if a man had sexual intercourse without consent with a woman, even if she was his wife, provided she was judicially separated from that man. Furthermore if an act of sexual intercourse with a wife without her consent involved violence and there was evidence of that violence then a man could be charged under the Penal Code and the Domestic Violence Act.
Polygamy was prohibited in law and practice, and it was well-known that the minimum marriageable age was 18 years. Awareness-raising programmes were in place to tackle child marriage and registrars had been trained in how to confirm the age of the female party to a marriage before the wedding. Answering the question on the composition of the Committee to look into the reform of the Muslim Marriage Ordinance, it was headed by a judge of the Supreme Court, a judge of the Court of Appeal and a judge from the Presidency Council, among others.
Questions by the Experts
The three-decade long armed conflict ended in 2009. Yet from a variety of information sources the Committee had the impression that the human rights situation had worsened, not bettered, since then, said an Expert. The eighteenth amendment to the constitution appeared to be a major stumbling block to the advancement of human rights in Sri Lanka.
The delegation was asked to respond to allegations that torture and ill-treatment of detainees remained common and widespread, especially at the moment of apprehension and during pre-trial detention in order to extract confessions, mainly due to legal and procedural shortcomings and the lack of political will on the part of the authorities. What measures had been taken to expand the definition of torture in existing law, investigate all allegations, ensure that evidence obtained under torture was inadmissible in court, and investigate and disclose the existence of secret detention centres. The Expert recalled the 2011 concluding observations of the Committee against Torture expressing concern for prevailing impunity for acts of torture.
What measures had been taken to deal with arbitrary and unlawful detention, and would the draft bill cited become law. The police did not already comply with already existing laws – how would the Government ensure they would comply with this draft bill, if it became law?
The Government’s statement committing to the protection of human rights defenders and media personnel was welcomed. That commitment also needed to be extended to any person who provided information to this Committee. The Committee would appreciate a statement by the delegation promising that nobody would be criticized or subjected to reprisals for providing information to the Human Rights Committee.
The Committee had been informed about politically-motivated charges, reprisals and attacks on human rights defenders and journalists and reports of public information campaigns against human rights activists by State-owned media. A climate of threats and attacks had a serious impact on the freedom of expression. Existing remedies were insufficient; vigorous action needed to be taken on any complaint heard said the Expert, asking whether any charges had been brought against perpetrators? The Penal Code permitted imprisonment for attempts to “incite feelings of disaffection towards the President, or against the people of Sri Lanka” and such charges had been brought against journalists.
How did Sri Lanka plan to build a free press and civil society? It was currently ranked the fourth worst country in the world for press freedom, commented an Expert. Had any investigations been conducted into the murders of journalists? Were there any plans to have a Code of Ethics for the media? Sri Lanka declared itself to be a democracy but the use of free speech threatened people’s lives.
The Government’s recognition of prison-overcrowding was commended, and the delegation was asked for an update on what measures were taken to address overcrowding and poor detention conditions? What measures had been taken to segregate incarcerated juveniles from adults and remand detainees from convicted felons? Had a system been established for prison monitoring? What was being done to limit the number and duration of pre-trial detention, as at least one-third of prison detainees had not been convicted of any crime.
An Expert cited allegations of judges and judicial officers being threatened and intimidated. On the independence and impartiality of the judiciary, an Expert raised the impeachment of a Supreme Court judge in February 2014 which received worldwide attention, adding that it undermined the independence of the judiciary.
Freedom of assembly was severely curtailed in the Northern Provinces by law enforcement and State intelligent services. There were reports of excessive force by the police to disperse protesters. Regarding freedom of expression on the internet, an Expert recalled allegations of restrictions on and censorship of news websites reporting on local news.
In a follow-up question an Expert asked whether Article 12 could be used by lesbian, gay, bisexual, transgender people in the appropriate circumstances to submit an application regarding the violation of rights to the courts?
Tens of thousands of internally displaced persons remained in need of assistance and protection. The State party had different figures to those from international organizations; could it please clarify? Could the delegation report on allegations that 23,000 internally displaced persons were unable to return to their homes and lands as they were being occupied by the State for military or economic use.
Experts noted that corporal punishment had been prohibited in schools but asked about its use in family settings. What measures had been taken to prevent child abuse and tackle the widespread phenomenon of child labour? The delegation was also asked about discrimination in land ownership, as well as matrimonial and inheritance rights which required women to obtain the written consent of their husband to dispose of their unmovable property.
Regarding the rights of minority persons, particularly Muslim and Tamil communities, the delegation was asked to provide information on allegations of increasing pressure and harassment by the authorities against certain religious groups, including attacks on places of worship of Muslim and Tamil communities. He asked about reports that the Tamils were not allowed to commemorate 18 May, known in the country as Victory Day, as a day of mourning.
Trafficking in persons, whether for sexual exploitation or forced labour, was a persistent issue in Sri Lanka. Steps taken to tackle the problem were recognized by the Committee, but it was disappointed that the first conviction for trafficking only came in 2011. What was being done to prosecute perpetrators and protect and support victims?
Follow-up questions were also asked regarding the proceedings in the case of Mr. Fonseca, the impeachment procedure against the Chief Justice,
NIGEL RODLEY, Committee Chairperson, took the floor to ask questions about the murders of 17 non-governmental organization staff of Action contre la Faim and other cases, noting that the very dignified father of one of the students killed on that occasion was here today. He noted that it appeared the Government had now changed its position and said it was prepared to allow testimony from overseas via audio-visual media, but with the location of the individual not being disclosed for the same reasons that led to the flight of the individual in the first place. If true, that was a positive step, and if not, it explained why other crucial witnesses were not confident to come forward either.
The delegation was asked if there had there been any occasions of Sri Lankan Commissions of Inquiry into serious human rights violations set up by an administration in respect to violations committed by the authority of that administration which had led to clarity of the fate of the person disappeared or prosecutions of the person responsible for the arbitrary killing, torture or murder?
Response by the Delegation
The Government rejected the assertion that there was a continued trend of attacks against media personnel, human rights defenders and members of civil society. A delegate said the law of evidence played a crucial role and the due process required the prosecution to have adequate evidence to take a case before a court. He noted that the spread of social media networks in recent years had led to the fast dissemination of information across the country and indeed the world. The wide spectrum of information on the internet, much of which was fiercely critical of the Government of Sri Lanka, illustrated the fact that no press censorship had been imposed by the current Government.
Sri Lanka was taking steps to ensure the safety of media personnel and institutions, and although there were no specific laws, individuals had the right to make a complaint either on their own behalf or on the behalf of the public interest. It was also noted that the law on criminal defamation had been repealed.
As of 31 August 2014 the Government had successfully resettled some 228,000 families in the Northern and Eastern Provinces. Â joint study with the United Nations Refugee Agency in Colombo found that the percentage of internally displaced persons remaining to be resettled was just 3.3 per cent: some 7,840 families or some 26,000 people. Some 65,747 new houses had been constructed and 9,246 partly-damaged houses had been renovated by the Government and other donor agencies. Some 9,000 houses were currently being constructed. Over the last four years the Government had released land in the Northern Province of Sri Lanka to resettle the majority of people in their places of origin. The delegate also said 32 welfare centres were in operation in the Northern Provinces to support landless and displaced people there. Gender equality was well recognized in the draft resettlement policy and men and women had equal rights to have documentation relating to land ownership in their own names.
The Government had a ‘Zero Tolerance on Torture’ policy which was reflected in every establishment, emphasized a delegate. The definition of torture in domestic law covered all elements in Article 1 of the Convention Against Torture. The word ‘suffering’ was not specifically mentioned in the definition contained in the Torture Act, but the Government view was that the inclusion of the term ‘severe pain, whether physical or mental’ invariably encompassed ‘suffering’ in both physical and mental manifestations. Purely mental torture was also included within the existing definition, so that the threat of torture may itself amount to psychological torture.
The Head of the Delegation took the floor to clarify a couple of points. He said that the percentage of Muslims and Tamils put together in Sri Lanka, across the country, was together much more than the majority community of Singhalese. Regarding the question about restrictions in commemorating 18 May, while Sri Lankans mourned all those who had died on that day, there was an aspect of the glorification of terrorism by allowing that aspect on the day.
RAVINATHA ARYASINHA, Permanent Representative of Sri Lanka to United Nations Office at Geneva, said the transition from a country fighting terrorism for 30 years to five years post conflict was not easy and he hoped the Committee would appreciate that, and also that Commissions, including the Commission of Inquiry on missing persons, often took a long time to complete their mandates. The Government of Sri Lanka was deeply respectful of the questions asked and assured the Committee it was doing all it asked, and took home from the review consciousness about the matters raised. Mr. Aryasinha wished more time had been available for the review, and noted that written responses to unanswered questions would be provided within 48 hours.
NIGEL RODLEY, Chairperson of the Committee, thanked the responsible and senior-level delegation for its diligent responses under the difficult time conditions which had contributed very much to the Committee’s understanding of the situation in Sri Lanka. He emphasized that the Committee was not judging Sri Lanka but was trying to evaluate the extent of Sri Lanka’s compliance with the International Covenant on Civil and Political Rights, to which it was a party without reservations. Nor did the Committee make comparisons with other countries, although it was familiar with international practice. Proportionality was built into the Covenant as a test for evaluating the legality of certain acts but was not a political test. Regarding the reversal of the burden of proof for admissibility of confessions, he said every international treaty body recognized that when a person was in the hands of the detaining authorities they were deprived of the means of providing proof of their allegations. Whatever the circumstances the responsibility had to be with the State to prove a statement had been made freely and voluntarily.
The Committee recognized that Sri Lanka had come to the end of a bloody war fighting against a body that did not hesitate to resort to terrorist methods to achieve its ends. It was good that displaced persons, including admitted combatants, had been resettled. However, over the years there had been allegations vindicated by international authoritative bodies of widespread disappearances, albeit fewer in recent times, and torture which was recently found to be a systematic practice. Zero tolerance or no zero tolerance, if torture was happening, the means of enforcing that zero tolerance needed to be reviewed. Other pertinent areas included impunity, and the question of abortion, as the Committee did not understand why a woman could be called upon to have a child inflicted upon her by virtue of an act of rape. Mr. Rodley also said the ruling that the consideration of individual communications by the Committee was tantamount to external jurisdiction – despite Sri Lanka’s ratification of the Optional Protocol with the United Nations Secretary-General – continued to be a problem and it would be helpful if the State party could find a way to renew its cooperation with the Committee on individual cases.