In a well-orchestrated move, spearheaded by Sri Lanka’s foreign minister Prof GL Peiris, Sri Lanka launched its PR exercise to highlight the progress it has made in fulfilling its commitment to the UN Human Rights Council (UNHRC) with a diplomatic briefing of the consular corps in Colombo on January 26, 2022.
UNHRC resolutions
How much the briefing will impact the members at the UNHRC’s 48th Regular Session to be held from February 28 to April 1, 2022 is an open question because President Gotabaya Rajapaksa had disowned the commitment made by the Sirisena-Wickremesinghe government, which had co-sponsored the UNHRC Resolution 30/1 co-sponsored by the Sirisena government and adopted in 2015.
The Resolution 30/1 had called for wide ranging reforms in the accountability process with international involvement. It wanted Sri Lanka to establish a credible judicial process, with the participation of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators to investigate alleged rights abuses.
Rajapaksa vision
President Rajapaksa speaking at the opening of the 8th Parliament on January 3, 2020, was explicit about the difficulties in reconciling his vision to the UNHRC’s way of “promoting reconciliation, accountability and human rights in Sri Lanka.” The President’s vision included respecting the aspirations of the majority of the people because “only then sovereignty of the people will be safeguarded.” He said he will defend the unitary status of our country and protect and nurture Buddha Sasana, “whilst safeguarding the right of all citizens to practice a religion of their choice.”
This triggered a core group of UNHRC members led by Britain to adopt the Resolution 46/1 at the UNHRC’s 46th Regular Session on February 22, 2021 to advance accountability for past rights violations and war crimes committed in Sri Lanka. The resolution also called upon the Sri Lanka government to revise the Prevention of Terrorism Act (PTA), which rights groups have warned was being used as a weapon of targeting dissidents and minorities in the country.
The PTA dilemma
The PTA was enacted in parliament in 1979, to arm the law enforcing agencies and security forces to combat the LTTE separatist insurgents. However, civil society groups at home and abroad have time and again, pointed out how state agencies have continued to grossly misuse the provisions of PTA even after the LTTE insurgency was crushed in May 2009. The Act was also used to target Muslims after the Easter Sunday attack carried out by Islamist jihadi terrorists on churches and luxury hotels in Colombo on April 21, 2019. A prominent Muslim lawyer Hejaaz Hizbullah arrested on April 14, 2020 along with six others has continued to languish in custody. Similarly, concern has been raised about the continued detention of Ahnaf Jazeeem, poet from Mannar.
The UN Working Group on Arbitrary Detention, after a two-week visit to Sri Lanka in December 2017 had called for the immediate repeal of the PTA, referring to it as “one of the key enablers of arbitrary detention for over four decades.”
A few examples of PTA’s draconian provisions are given below:
· Where a statement made by a suspect, orally or in writing, in the course of an investigation, or not, may be proved against such person.
· A statement made at an identification parade by a person, who is dead or who cannot be found, against a suspect shall be admissible in evidence.
· Any document found in the custody, control or possession of a person accused of any offence or an agent or representative of such person may be produced in court as evidence against such person without the marker.
· A police sub inspector, authorised in writing by him, may without warrant (a) arrest any person, (b) enter and search any premises, (c) stop and search any individual or any vehicle, vessel, train or aircraft and (d) seize any document or thing connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity [unlawful activity not defined in the Act]. A police superintendent may order that such person be remanded until the conclusion of the trial.
· Every person who commits an offence under this Act shall be triable without a preliminary inquiry, on an indictment before a high court judge sitting alone without a jury or before the high court at Bar by three judges without a jury as decided by the Chief Justice.
Perhaps the worst provision under the Act is that a suspect can be detained for 18 months.
A day after the foreign minister’s briefing, a Bill to amend the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 was gazetted. It seeks to amend some of the salient features of existing PTA including the reduction of the period of detention of a person from 18 months to 12 months. Already, the amendments in the Bill are being debated in the media and by political leaders. It will be debated in parliament before its final form is approved. Counter terrorism laws are perhaps a requirement in countries the world over as terrorism threat has become universal. However, what matters more is the spirit with which it is applied. This is what is lacking in the present dispensation in Sri Lanka.
Rs 100 millions for reparations
Speaking to the diplomatic corps, Prof Peiris touched upon the progress made by Sri Lanka since the last UNHRC meeting. These included the payment SL Rs 100 millions as reparations to persons affected by war in Northern Province through mobile programmes; interviews carried out by Presidential Commission of Inquiry to review the findings of the Commissions and Committees on violations of human rights and international humanitarian law.
At length he dwelt upon access to judicial systems and expounded on how the present government led by President Rajapaksa and PM Mahinda Rajapaksa regard this whole country as one. “We don’t truncate it. We don’t think in terms of North and South, East and West. Whatever programmes we devise are for the wellbeing of all our people without any distinction as to religion, ethnicity or caste.” These are fine statements. As the cliché goes, the proof of the pudding is in eating it. And it is high time the Sri Lanka government lived up to its own orations, to convince the people.
After the 25th session of the UNHRC, in March 2014 India’s External Affairs Minister, while talking to Sri Lanka media representatives listed out a few things for Sri Lanka to ponder in its approach to the ethnic reconciliation process and the war crimes allegations.
According to Sri Lankan media of that period, these were:
No isolation: Sri Lanka should not isolate itself from the world and find ways to communicate its ‘compulsions and limitations’ and find a greater understanding with the world. He stressed that accountability and justice are now more pervasive in the world than before as the world is increasingly interconnected and open.
Show commitment first: “For India to help Sri Lanka in Geneva, Sri Lanka should address local concerns so that India would be able to lobby on behalf of Sri Lanka. For us to help, you should be doing things that we would be able to tell the world.”
Ego: He advised that ego should not be allowed to get in the way: He advocated a much saner approach “in contrast to the local proclivity to slander the visiting UN and US officials.
Sensitivity: Sri Lanka should not be too sensitive and the world should not be over-reactive. He referred to the government orchestrated demonstrations against the US and the UN in Colombo when the resolution was brought before the UNHRC earlier. Rights activists and journalists were subjected to character assassination.
These suggestions may come in handy for President Rajapaksa, who claims Sri Lanka’s “humanitarian war” liberated the people from three decades of LTTE tyranny. He has to recognise the UN forum is asking him to account for alleged violation of universal humanitarian laws. He has to seriously introspect on the present approach to UNHRC’s allegations of human right violations.
[Col R Hariharan, a retired MI specialist on South Asia and terrorism, served as the head of intelligence of the Indian Peace Keeping Force in Sri Lanka 1987-90. He is associated with the Chennai Centre for China Studies.