Verite Reserach
Sri Lanka:LLRC!Implementation Monitor- Statistical and Analytical Review No.2
Background
The Lessons Learnt and Reconciliation Commission (LLRC) published its final report on 16 December 2011. On 26 July 2012, the government released a National Plan of Action to Implement the Recommendations of the LLRC (NPA). The LLRC originally contained 167 recommendations that required tangible action by the government. Subsequently, 12 further recommendations have become actionable, making the total number of actionable recommendations 179.
The NPA fully included 81 actionable recommendations and partially included 51 recommendations.
47 actionable recommendations were not included in the original plan.
On 4 July 2013, the Presidential Secretariat announced that the Cabinet had approved the inclusion of 53 recommendations in an addendum to the NPA. In fact, 57 distinct recommendations were included in this addendum. Of these recommendations, only 42 were originally omitted from the NPA. The remaining 15 were in fact included (fully or partially) in the original NPA. At the time of releasing this briefing note, seventeen actionable recommendations were not included in the NPA.
In March 2012, the UN Human Rights Council passed Resolution 19/2 on Promoting Reconciliation and Accountability in Sri Lanka. The Resolution specifically called for the implementation of the ‘constructive recommendations’ of the LLRC.
105 constructive recommendations fall into the following eight categories:
Credibly investigating widespread allegations of extrajudicial killings and enforced disappearances
Demilitarizing the north of Sri Lanka
Implementing impartial land dispute resolution mechanisms
Re-evaluating detention policies
Strengthening formerly independent civil institutions
Reaching a political settlement on the devolution of power to the provinces
Promoting and protecting the right of freedom of expression for all
Enacting rule of law reforms
These constructive recommendations were once again cited in the March 2013 UN Human Rights Council Resolution on Promoting Reconciliation and Accountability in Sri Lanka.
In January 2014, the Government of Sri Lanka claimed to have ‘completed’ the implementation of several constructive recommendations.
This briefing note seeks to evaluate the government’s claims by assessing the implementation status of selected recommendations under each constructive category.
1. Investigating extrajudicial killings and enforced disappearances
The LLRC presented 13 recommendations on credibly investigating widespread allegations of extra-judicial killings and enforced disappearances.
The LLRC cited several incidents of civilian deaths allegedly caused by the government security forces including the Sri Lanka Army and the Sri Lanka Navy. In recommendations 9.9 and 9.37a, the LLRC recommended that the government investigate these incidents.
The Army Board on the Recommendations of the LLRC in its report released on 24 January 2013 observed that ‘the questions whether civilian casualties in fact occurred or whether such incidents were collateral or incidental damages that are inherent with the vagaries of war have not been answered affirmatively by the LLRC’ [sic]. It recommended the appointment of another Army Board of Inquiry to investigate allegations contained in the LLRC Report and the Channel Four footage. The Army simultaneously appointed a Court of Inquiry to investigate these allegations and concluded in February 2013 that ‘instances of shelling referred to in the LLRC Report were not caused by the Sri Lanka Army.’ The Navy also appointed a Board of Inquiry, which concluded that ‘the allegations made against the Sri Lanka Navy that it fired at civilian targets are baseless as there is no evidence to indicate that the Navy personnel were responsible for any attacks on civilians or civilian property either deliberately or by negligence.’
Analysis
Military bodies have described the LLRC’s findings pertaining to civilian deaths caused by security forces as either inadequate or baseless. Hence the government has not demonstrated a clear intention to fully implement the LLRC’s recommendations on investigating extrajudicial killings including civilian deaths during the war.
3,596 disappearances
3,596 disappearances were reported to the LLRC during its sittings in 2010 and 2011, out of which 1,018 reportedly took place after the Police or security forces arrested the person concerned. Moreover, 45 cases were reported to have taken place after the person concerned surrendered to the security forces. In August 2013, the President appointed a three-member Commission of Inquiry with a mandate to investigate cases of missing persons reported from the Northern and Eastern provinces from 1990 to 2009. The Commission received approximately 13,700 complaints as at January 2014.
In January 2014, the government reported significant progress in implementing recommendation 9.46 pertaining to investigating disappearances. It reported that 2,792 complaints of disappearances were made to the Terrorist Investigation Division of the Police (TID), out of which 2,547 cases have been investigated.
Analysis
The TID’s involvement in investigating cases of disappearances, many of which involve suspected ‘terrorists’ is highly inappropriate. The former Special Rapporteur on Torture, Manfred Nowak has previously observed: ‘a considerable number of clearly established cases of torture by TID…together with various efforts by TID to hide evidence and to obstruct the investigations of the Special Rapporteur.’ As at January 2014, only 14 persons have been traced by the TID.
In this context, even after the lapse of more than two years since the LLRC released its report, poor progress has been achieved in investigating enforced or involuntary disappearances, including those reported to the LLRC during its sittings.
2. Demilitarisation
The LLRC presented 6 recommendations on the subject of demilitarisation.
In January 2014, the government specifically reported that the implementation of recommendation 9.171 on phasing out the involvement of the security forces in civilian activities and use of private lands by the security forces was ‘completed’.
Analysis
The military continues to engage in civilian administration activities including the general maintenance of law and order, which is a function ordinarily allocated to the Police. The President currently issues monthly proclamations under section 12 of the Public Security Ordinance (1947), calling out the armed forces for the maintenance of public order. This proclamation entrenches the military’s role in maintaining law and order not only in the Northern Province, but also in the rest of the country.
The military continues to seize and occupy private land. In April 2013, the Army seized 6,371 acres (approximately 25 km2) of private land in Valikamam North, Jaffna for the purpose of establishing a battalion headquarters. The acquisition is currently ongoing, and is being challenged by 2,176 affected Tamil landowners in the Court of Appeal. The government makes no mention of this acquisition in its progress report on the NPA released in January 2014.
3. Land Dispute Resolution
The LLRC made 31 actionable recommendations on the subject of land dispute resolution.
In January 2014, the government claimed to have fully implemented many of these recommendations including the Interim Recommendation on ‘issuing a clear statement that private lands would not be utilized for settlements by any government agency.
Analysis
No identifiable policy of this nature exists in the public domain. The above-mentioned example of land acquisition in Valikamam North, Jaffna demonstrates the continued use of private lands for settlements by government agencies, including the military.
In January 2014, the government claimed to have ‘completed’ implementing recommendation 9.131, which calls for a media seminar on the Land Circular programme, designed to identify land-related problems in the North and East.
Analysis
The activity that is reported in terms of implementing this recommendation only refers to a separate commission (i.e. the 4th Land Commission) tasked with assessing the ‘feasibility’ of implementing the recommendation. Hence the claim that implementation of this recommendation was ‘completed’ remains unsubstantiated.
4. Detention Policies
The LLRC presented 18 recommendations on re-evaluating detention policies. One key recommendation in this regard calls for law enforcement authorities to issue a formal receipt of arrest when taking persons into custody. This recommendation was only incorporated into the NPA in July 2013.
In January 2014, the government reported that ‘no further action is required for implementation’, as ‘[f]amilies of arrested persons were informed of their arrest and detention when Emergency Regulations were in force and in the period before and after, and that persons were and are being detained in places which are declared as places of detention.’ The same progress is reported for at least four recommendations under this category.
Analysis
The government’s claims appear to render the LLRC’s recommendations on detention policy redundant, as no new commitments are made with respect to implementing these recommendations.
Meanwhile, arbitrary arrest and detention of civilians, include students, continues to take place under the new Prevention of Terrorism Act (PTA) Regulations, which permit investigating officers to take suspects to any place for the purpose of interrogation and from place to place for the purposes of investigation. The new regulations also permit the law enforcement authorities to ‘rehabilitate’ suspects without any indictment or criminal prosecution. In December 2012, following a peaceful protest against military assaults on students, eleven students from the University of Jaffna were arbitrarily arrested and detained, and four students were thereafter ‘rehabilitated’ in a facility in Welikanda. Seven Tamil youths were similarly arrested between 23 and 27 November 2013.
5. Independent Civil Institutions
The LLRC presented 5 recommendations on strengthening formerly independent civil institutes. It specifically called for reforms with respect to the National Police Commission and the Public Service Commission.
In January 2014, the government claimed that implementation of the recommendations on establishing an independent permanent Police Commission had been ‘completed’. Moreover, it reported that ‘an independent Public Services Commission has been established.’
Analysis
The Seventeenth Amendment to the Constitution empowered an independent, bi-partisan body, the Constitutional Council, to determine appointments to several key civil institutions including the National Police Commission and the Public Service Commission. However, the Eighteenth Amendment to the Constitution abolished the Constitutional Council and vested power in the President to make appointments to the National Police Commission and Public Service Commission. This highly centralised approach to appointments compromises the independence of these civil institutions. Hence the recommendations on strengthening the independence of the National Police Commission and Public Service Commission have not been fully implemented.
6. Devolution
The LLRC presented 7 recommendations on reaching a political solution on devolution in Sri Lanka.
Analysis
As at January 2014, only 4 recommendations pertaining to a political solution have been included in the NPA. Of these recommendations, one recommendation (9.230) has no discernable implementation plan, except that it was included in the NPA in July 2013. The remaining 3 recommendations (9.36, 9.37 and 9.61a) are to be referred to a Parliamentary Select Committee (presumably the Select Committee on ‘political and constitutional measures to empower Sri Lankans to live as one nation’) and no further progress is reported.
7. Freedom of Expression
The LLRC presented 5 key recommendations on protecting the right of freedom of expression.
In January 2014, the government claimed to have ‘completed’ implementing the key recommendation on investigating past attacks on media personnel. The government cited the online complaints mechanism available to journalists to complain to the Sri Lanka Press Council as evidence of the full implementation of this recommendation.
Analysis
The Sri Lanka Press Council is an ineffectual mechanism, which contributes more towards restricting media freedom, rather than promoting it. The Act incorporating the Council, for instance, prohibits disclosure of certain fiscal, defense, and security information and stipulates that the violation of the Act by individuals (including journalists) could result in prison terms.
Meanwhile, investigations into the assassination of the Editor of the Sunday Leader, Lasantha Wickrematunge, the disappearance of journalist Prageeth Eknaligoda and the numerous attacks on the staff and offices of the Uthayan newspaper, are either incomplete or nonexistent.
8. Rule of Law
The LLRC presented 20 recommendations on rule of law reforms.
In January 2014, the government reported that the implementation of recommendation 9.73 had been ‘completed’. This recommendation called for the investigation and prosecution of illegal armed groups.
Analysis
The government’s report on progress only specifies that action has been taken ‘to disarm all illegally armed persons in the North and East’ and that ‘measures will be observed regularly to ensure that illegally armed groups do not reemerge.’ This report makes no mention of investigations into the past activities of illegal armed groups, which is specifically referred to in the LLRC’s recommendation.
The LLRC’s recommendation 9.213 on ‘ensuring that all allegations are investigated and wrongdoers are prosecuted and punished irrespective of their political links’, refers specifically to ‘Karuna’ as an individual that should be investigated for human rights violations and crimes. In January 2014, the government reported that ‘76 persons are in custody [and that] investigations relating to many of them have been completed’. Moreover, the government reported that ‘legal action had been taken with regard to the release, indictment or rehabilitation of 181 remaining suspects and this number has now been reduced to 84.’
Analysis
The government’s report on progress does not relate to the specific issue raised by the LLRC with respect to the impunity enjoyed by illegal armed groups including the ‘Karuna’ faction of the LTTE, which had ‘political links’ to the government. The progress report instead refers to former cadres of the LTTE who are presently being investigated and rehabilitated under the above-mentioned PTA Regulations. Meanwhile, Vinayagamoorthy Muralitharan (a.k.a ‘Karuna’) still remains the government’s Deputy Minister for Resettlement.
Additional Issue: Religious Freedom
The March 2013 UN Human Rights Council Resolution on Promoting Reconciliation and Accountability in Sri Lanka specifically expressed concern on the continuing reports of discrimination on the basis of religion or belief.
The LLRC’s recommendation 9.267 calls on the government to take strong deterrent action against incidents of inter-faith intolerance. This recommendation was only partly incorporated into the NPA in the July 2013 addendum, as the addendum only refers to deterrent action against ‘vandalization of places of worship’, and not against incidents of inter-faith intolerance.
In January 2014, the government reported that implementation of recommendation 9.267 has been ‘completed’ and that ‘no further action is required’.
Analysis
Several incidents involving inter-faith intolerance were reported during 2013. Over 300 attacks against the Muslim community have occurred since January 2013, out of which 59 involved physical violence and destruction of property. Muslim places of worship, businesses and public figures have all been targeted. At least 69 attacks on Christians have occurred since January 2013 out of which 15 involved physical violence or destruction of property. Churches as well as private residences have come under attack. Over 300 attacks on Hindu places of worship have also taken place in the North and East. A majority of these attacks have not been investigated.
Conclusion
In January 2014, the Government of Sri Lanka claimed that the implementation of a significant number of constructive recommendations was ‘completed’. This briefing note has examined selected recommendations under each constructive category mentioned in the UN Human Rights Council Resolutions 19/2 and 22/1 in order to evaluate the veracity of the government’s claims.
The aforementioned analysis accordingly raises serious doubts with regard to the government’s claims. In each constructive category, one or more LLRC recommendations listed as fully implemented (i.e. ‘completed’) by the government have not been fully implemented. In this context, it is reasonable to conclude that the government’s report on progress is unreliable.
End Notes
Please see PDF with end notes and charts at Verite Research