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Thursday, July 29, 2021

Leaked UN Rights Commissioner’s report on Sri Lanka: “Emerging threats to reconciliation, accountability and human rights”

Image: The High Commissioner is particularly troubled the appointments of Lieutenant General Shavendra Silva, as Army Chief and Major General (retired) Kamal Gunaratne, as Secretary to the Ministry of Defence who have been alleged in United Nations reports to be implicated in alleged war crimes and crimes against humanity during the final years of the conflict.

Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka dated 12 January 2021, which has not been published by the OHCHR is in circulation among the Colombo media. The report has been sent to the Government of Sri Lanka to obtain its comments. GoSL has not sent any comments yet, according to informed sources. The report has been leaked to media for reasons better known for the persons responsible for the leak.

Its chapter on Emerging threats fellows:

III. Emerging threats to reconciliation, accountability and human rights

17. From2015, Sri Lanka took some important steps in strengthening democratic institutions and opening up democratic space, including for civil society and the media. Of fundamental significance was the adoption of the 19th Constitutional Amendment in April 2015, which strengthened the independence of key institutions and checks and balances on executive power. These gains were tested by the constitutional crisis of 2018, and especially after the Easter Sunday terrorist attacks of April 2019, which killed more
than 250 people. In the aftermath, there was communal violence against the Muslim minority, and a prolonged state of emergency, emergency measures and extraordinary deployment of the military.

18. Significant challenges and negative trends have emerged over the past year which have profoundly changed the environment for reconciliation, accountability and human rights, as well as achievement of the 2030 Agenda. Despite some of the successful Government efforts to contain the COVID-19 pandemic, its social and economic impact has been deep and exacerbated structural inequalities and discrimination.

19. The following section highlights six of these broader trends: i) militarization of civilian government functions; ii) reversal of Constitutional safeguards; iii) political obstruction of accountability for crimes and human rights violations; iv) majoritarian and exclusionary rhetoric; v) surveillance and obstruction of civil society and shrinking democratic space; and; vi) new and exacerbated human rights concerns. The High Commissioner is concerned these represent important early warning indicators that require the Human Rights Council’s urgent attention.

A. Militarization of civilian governmental functions

20. Resolution 30/1 included commitments that would foster an enabling environment for transitional justice and reconciliation, such as ending military involvement in civilian activities, accountability for military personnel, and security sector reforms. Yet, the past year has seen a deepening and accelerating militarization of civilian government functions – which the High Commissioner first reported to the Human Rights Council in February 2020 – particularly in the context of the COVID-19 pandemic.

21. On 29 December 2019, the Government brought 31 entities under the oversight of the Ministry of Defence, including, the Police, the Secretariat for Non-Governmental Organizations, the National Media Centre, the Telecommunications Regulatory Commission, the Information and Communication Technology Agency, the National Dangerous Drugs Control Board, the Disaster Management Centre and the Department of Emigration and Immigration.29 On 20 November 2020, the President moved the Police Department under a new Ministry of Public Security and appointed a former Navy Admiral as Minister.

22. Since 2020, the President has appointed at least 28serving or retired military and intelligence personnel to key administrative posts and has formed several Presidential task forces with vague, overbroad or 24 The 19th Amendment also introduced the Right to Information act. That has been regularly extended by Gazette by virtue of Section 12 of the Public Security Ordinance. This was reassigned to the Presidential Secretariat by Gazette (Extraordinary) no 2194/74 of 25.09.2020 or military officers have been appointed as Chief coordinating Officers for all districts to tackle COVID-19.

23. The High Commissioner is particularly troubled that these appointments include senior military officials who have been alleged in United Nations reports to be implicated in alleged war crimes and crimes against humanity during the final years of the conflict, including Lieutenant General Shavendra Silva, as Army Chief and Major General (retired) Kamal Gunaratne, as Secretary to the Ministry of Defence. They respectively commanded the 58th and 53rd Divisions, which were credibly alleged to have committed grave violations of international human rights and humanitarian law during the armed conflict. On 28 December 2020, both officers were promoted to the rank of General.36 In September 2019, the United Nations took the decision to suspend all Sri Lanka’s Army peacekeeping deployments, except where they would expose United Nations operations to serious operational risk.

B. Reversal of Constitutional safeguards

24. On 22 October 2020, the new Parliament passed the 20th Amendment to the Constitution with a two-thirds majority. The amendment changes the balance of power between the different branches of the Government, vastly expanding the scope of presidential and executive powers and reversing many democratic gains introduced with the 19th Amendment in 2015. The High Commissioner is concerned that the amendment has fundamentally eroded the independence of key commissions and institutions, including the HRCSL, the Election Commission, the National Police Commission37 and the judiciary in terms of oversight and procedure for the selection, appointment and dismissal of senior judges and other high-ranking officials. The amendment abolishes the Constitutional Council of eminent persons, which recommended appointments to the President and re-established the Parliamentary Council, which is composed exclusively of politicians and may only make observations. In December 2020, the President proceeded with the appointment of new members to the HRCSL, including a former Minister as chairperson. The High Commissioner is concerned that the new appointment process undermines the
credibility and independence of the Commission.

25. In September 2020, the Government appointed an Expert Committee to draft a new Constitution and invited public inputs on several topics: the nature of the State, fundamental rights, language and decentralization. The High Commissioner notes the importance of an inclusive consultative process that takes into account the diversity of society and the full participation of civil society. In its past resolutions on Sri Lanka, the Human Rights Council has emphasized the “devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population.” Various United Nations human rights mechanisms have also issued recommendations to Sri Lanka on addressing gaps in the Constitution’s chapter of fundamental rights, and OHCHR stands ready to provide further technical assistance in this regard.

C. Political obstruction of accountability for crimes and human rights violations

26. While the criminal justice system in Sri Lanka has long been the subject of interference, the current Government has proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes. On 9 January 2020, the Government appointed a Presidential Commission of Inquiry to investigate alleged “political victimisation”of public officials, members of the armed forces and police, and employees of State corporations by the previous Government.41 With its
broad mandate, the commission has intervened in police investigations and court proceedings and had the effect of undermining the police and judiciary in several high profile human rights and corruption related cases.

27. Most notably, in January 2020, the Commission issued directives to the Attorney-General to halt the prosecution of former Navy Commander Admiral Wasantha Karannagoda and former Navy Spokesman Commodore D.K.P. Dassanayake in relation to disappearances of 11 persons in 2008-9. The AttorneyGeneral did not comply with this order, asserting that the Commission had no statutory or legal authority to order him to refrain from performing his statutory functions. Additionally, the Commission has intervened in favour of military intelligence officers in ongoing judicial proceedings, including in the murder of journalist Lasantha Wickrematunge in 2008, and enforced disappearance of cartoonist Prageeth Eknaligoda in 2010. The Commission has also interfered in other criminal trials, including by withholding documentary evidence, threatening prosecutors with legal action, and running parallel and contradictory examinations of individuals already appearing before trial courts. The Commission submitted its final report to the President on 8 December 2020, but at time of writing this had not been published.

28. On 31 July 2020, Shani Abeysekara, a former chief of the police criminal investigation division (CID), who led investigations into several high-profile crimes and “emblematic” human rights cases, was arrested on charges of fabricating evidence in a murder case. The HRCSL raised concerns over Mr. Abeysekara’s safety in prison, particularly after he was diagnosed with COVID-19 in November 2020. Another CID Inspector, Nishantha Silva, left Sri Lanka in 2019 fearing reprisals for his lead investigative role in respect of several emblematic cases.

D. Majoritarian and exclusionary rhetoric.

29. The High Commissioner welcomes the Government’s public commitments to the 2030 Agenda and appointment of a new Sustainable Development Council. She notes the Government’s affirmation of the rights of all Sri Lankans, but is deeply concerned about the increased use of ethno-nationalistic and majoritarian rhetoric and symbols by the President and other senior Government figures, which define public policies that appear to exclusively reflect the perceived interests of the Sinhala Buddhist majority, and with minimal consideration for minority communities. Ethnic and religious minority communities are left behind and excluded in such official discourse, and often perceived and treated as posing a threat. Such an approach has serious negative implications for reconciliation, peacebuilding and religious tolerance, and carries the seeds of future violence and conflict.

30. In his anniversary address on 18 November 2020, the President underlined that he had been elected by the Sinhala majority and invoked “legitimate fears that the Sinhala race, our religion, national resources and the heritage would be threatened with destruction in the face of various local and foreign forces and ideologies that support separatism, extremism and terrorism.”44 The President has set up an advisory council consisting of senior Buddhist monks to seek advice on governance.45 In June 2020, a Presidential Task Force was established on the sensitive issue of Archaeological Heritage Management in the Eastern Province, consisting almost entirely of Sinhalese members, including two Buddhist priests, despite the diverse population and heritage of the region. The Government declined to include the national anthem in the Tamil language on national occasions, such as the Independence Day celebrations, on 4 February 2020, despite the preceding years’ practice of singing it in two languages as a significant gesture towards reconciliation.

31. The COVID-19 pandemic has also impacted on religious freedom and exacerbated the prevailing marginalisation and discrimination suffered by the Muslim community. The High Commissioner is concerned that the Government’s decision to mandate cremations for all those affected by COVID-19 has prevented Muslims from practicing their own burial religious rites, and has disproportionately affected religious minorities and exacerbated distress and tensions. Although the Government asserted to OHCHR that this policy is driven by public health concerns and scientific advice, the High Commissioner notes that WHO guidance stresses that “cremation is a cultural choice”.47 SriLankan Muslims have also been stigmatized in popular discourse as carriers of COVID 19 – a concern raised by the High Commissioner in her global update to the Council in June 2020.

E. Surveillance and intimidation of civil society and shrinking democratic space

32. A pattern of intensified surveillance and harassment of CSOs, human rights defenders and victims appears to have intensified over the past year, including of those who supported the implementation of resolution 30/1. As of December 2020, over 40 civil society organizations had approached OHCHR with reports of harassment, surveillance and repeated scrutiny by a range of security services – including Criminal Investigation Department, Terrorist Investigation Division, National Investigations Bureau and State
Intelligence officials – who questioned them about administrative details and activities of the organization, lists of staff, including their personal contact details, donors and funding sources. Some were questioned about the whereabouts of their relatives abroad. The Secretary-General and Special Procedures have received similar allegations of surveillance and reprisals.49 While the Government has stated its objective is to prevent violent extremism, the High Commissioner is concerned that this is
creating a chilling effect on civic and democratic space and leading to self-censorship. While Sri Lanka was able to successfully hold parliamentary elections in August 2020 despite COVID-19, the pandemic has also been used to justify excessive or arbitrary limits on legitimate freedom of expression and association.

33. This has been reinforced by changed institutional arrangements for NGO oversight, and the use of laws on counter-terrorism or money-laundering to stifle legitimate activities. Significantly, the Government moved the NGO Secretariat, which supervises and monitors the registration and operations of NGOs, from a civilian Ministry under the purview of the Ministry of Defence and its intelligence arms.

34. Reports that the Voluntary Social Services Organisations (VSSO) Act that regulates operations of NGOs will be reviewed inter alia to control their access to foreign funds are also worrying. The High Commissioner stresses that any legislative reforms must comply with Sri Lanka’s international legal obligations and constitutional provisions to respect and protect human rights, and should strengthen an enabling environment for civil society, rather than unreasonably restricting their activities and access to
resources. 51 OHCHR stands ready to provide technical assistance and advice in this regard.

35. Other laws, such as the International Covenant on Civil and Political Rights (ICCPR) Act, which prohibits incitement to hatred, have also been misused in a discriminatory or arbitrary manner to arrest or detain people for peacefully expressing their opinion.The Special Rapporteur on freedom of religion and belief has observed that the ICCPR Act “has become a repressive tool used for curtailing freedom of thought or opinion, conscience, and religion or belief.” For example, Ramzy Razeek, an online activist was arrested on 9 April 2020 under this lawand the Computer Crimes Act for using the expression “ideological jihad” in a post on his Facebook page criticizing anti-Muslim campaigns. A few days before, he had filed a complaint to the police about death threats that he received following his posting. He was released on bail on 17 September 2020 on account of his deteriorating health.

F. New and exacerbated human rights concerns

36. The High Commissioner is concerned that the Government has continued to use the Prevention of Terrorism Act (PTA), despite repeated calls over many years by United Nations human rights mechanisms to repeal it. For instance, on 14 April 2020, police officers arrested prominent lawyer Hejaaz Hizbullah at his house. No detention order was given to him until 25 April 2020. His legal chambers were searched and materials seized. Hizbullah has been under renewable 90-day detention orders since then, under investigation for alleged involvement in the April 2019 terrorist attack in Colombo and for engaging in activities deemed “detrimental to the religious harmony among communities” and alleged indoctrination of children into extremism. Hizbullah’s hearing before a Magistrate is postponed to February 2021, citing COVID-19 concerns. By then, he will have been in detention for 10 months without being charged.

37. The High Commissioner is also concerned by a recent series of deaths in police custody and in the context of police encounters with alleged criminal gangs. These incidents have occurred as the President and other senior Government figures have announced a tough, militarized approach to law and order and drug control. On 20 October 2020, Samarasinghe Arachchige Madush Lakshitha, the alleged leader of a drug trafficking group, was reportedly killed in a police crossfire while he was under the custody of the Colombo Crime Division (CCD). A few days earlier, his family and lawyers had expressed concern about his security. Four other deaths at the hands of the police of alleged members of organized crime gangs took place between June and August 2020. Recent deaths in custody also occurred in police stations, including allegedly as a result of torture, and in prisons during attempted escapes or riots and protests linked to fears of COVID-19. The most serious incident resulted in the death of 11 inmates and injuries to over one hundred during a protest in Mahara prison on 29 November 2020.

38. These incidents reflect the persistence of longstanding and endemic patterns of custodial deaths, use of torture and other ill-treatment, and extrajudicial killings by law enforcement officials with impunity. OHCHR has also continued to receive credible allegations through well-known human rights organizations of abductions, torture and sexual violence by Sri Lankan security forces since the adoption of resolution 30/1, including in the past year, which need to be credibly investigated.

39. The High Commissioner welcomes some of the positive measures to mitigate the spread of COVID-19 in prisons, such asthe Attorney-General issuinginstructions to facilitate bail for certain offences and the release of thousands of prisoners during2020.OHCHR stands ready to assist with more systemic reforms to address the root causes of an overloaded prison system with long-standing problems, such as overcrowding, long pre-trial detention and complex bail regimes that have been raised by different special
procedures.

Note by SLB: We publish these unedited chapters of the report, which is not yet officially published but has been leaked to Colombo media and only selected excerpts have been published in the weekend papers.

( Footnotes in the report have not been taken out)

 

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