Image: Rita Izsak, UN Special Rapporteur on minority issues.
From the report of the Special Rapporteur on minority issues on her mission to Sri Lanka.
60. The National Unity Government established in January 2015 must be commended for many of its reform initiatives and positive practices to promote good governance and national reconciliation. However, as a consequence of the long conflict and the prevailing culture of impunity that remains unaddressed, there is a clear trust deficit vis-à-vis the State as well as between the communities in Sri Lanka. The polarized social and political environments and divisions that cut across society through ethnic, religious and linguistic lines are key obstacles to the reform process as well as to the much -needed process of national reconciliation. Adversarial ethnicization of politics blocks progress in achieving the reform needed for the full protection and promotion of minority rights.
61. The protection and realization of the rights of minorities are instrumental not only to reduce communal tensions but are essential components of good governance.
History has shown that societies in which mechanisms are in place that allow minorities to freely use their language, practise their culture and religion and participate in political and economic life on an equal footing with the rest of the population are the societies that succeed in creatinglasting peace and stability.
62. Protection and promotion of minority rights and national reconciliation are not contradictory. The Special Rapporteur firmly believes that the success of the ongoing reform and reconciliation process depends on the extent to which the Government can place a minority rights regime firmly on its longer-term governance and transitional justice agenda. Particular attention should be paid to effective participation of minorities in decision-making, equality in access to economic and social opportunities and the constructive development of practices and institutional arrangements to accommodate ethnic, linguistic and religious diversity within society. Where inequalities based on ethnicity have existed, whether intentionally or de facto, corrective special measures must be undertaken to establish equal enjoyment of rights on the basis of accurate and disaggregated data.
63.For the good governance initiative to succeed, there is also a need for all Sri Lankans to come together and regenerate trust at all levels of society. While addressing the past and ensuring accountability, a conscious effort to strengthen the Sri Lankan identity and the notion of nationhood to foster a stronger sense of belonging and togetherness of all Sri Lankans is critically needed.
The Special Rapporteur very much welcomes the National Policy on Reconciliation (2016) in this regard.
64.The constitutional reform and the transitional justice process present an unprecedented opportunity to address the past and shape a common vision of the future for Sri Lanka, and at the same time to build in a strong minority rights regime in the governance structure, putting in place legal and institutional guarantees for equality and non-discrimination for all. It is important that the Government present a clear vision and road map, with timelines as necessary for the implementation of these important processes in a uniform manner.
65.Mechanisms such as the Secretariat for Coordinating Reconciliation Mechanisms and the Office for National Unity and Reconciliation will undoubtedly play an important role in moving the country forward along with other existing independent commissions. The Special Rapporteur particularly welcomes the enhanced independence of the National Human Rights Commission. She urges the Government at all levels to extend full institutional cooperation to these institutions and mechanisms, ensuring that sufficient human and financial resources are provided for the full implementation of their mandates. Recruitment of staff from diverse ethnic and religious communities should continue to be encouraged. The Office of Missing Persons should be established swiftly and transparently.
Minorities commission
66.The Special Rapporteur also recommends that the Government establish an independent commission on minorities under the Constitution. The commission should have a clear mandate, powers, resources and autonomy, and a diverse workforce that includes representatives of minority communities. Its mandate should enable it to provide expert advice in legislative drafting and policymaking processes; advise and formulate necessary legislative changes as well as implementation measures; have an interministerial coordination role in recognition of the need to mainstream minority issues across policy areas; undertake promotional and educational activities; develop good practice guides, information resources and reports; develop campaigns and outreach relating to minority rights; conduct needs assessments to identify the needs of minority communities, monitor their situation and serve as a bridge and trust-building platform between minority communities and the Government; and facilitate arbitration, dialogue, national debate and activities to prevent and find solutions to ethnic-or religion-based tensions.
Political participation and inclusive governance
67.The overwhelming sense of marginalization felt by minorities must be addressed by taking immediate measures to ensure their participation and representation in public life, particularly in shaping decisions that affect them.
Effective and meaningful participation of all groups in the political arena confers trust and legitimacy in governance and can be a pivotal element in reducing community tensions and segregation. While there are a number of ways in which political participation of minorities can be achieved, including the devolution of certain powers by means of a federal arrangement, a system of reserved seats in Parliament and facilitated participation in the electoral process of political parties representing the interests of minorities, it will be important for any future electoral reform to ensure proportional representation for all minority groups on the basis of accurate data collection and disaggregation. The modality for political inclusion must afford minorities genuine influence and not simply tokenism, which may lead to deeper frustrations.
68. The Special Rapporteur also urges the Government to consider measures aimed at ensuring that government and provincial offices, law enforcement bodies, the armed forces and education and health institutions are truly reflective of the diversity within Sri Lankan society by including members of ethnic, linguistic and religious minorities at all levels, with particular attention to those facing multiple and intersecting forms of discrimination such as women and lower caste groups. This may be achieved through mandatory quota systems, especially at the federal level, as well as targeted affirmative action in training and recruitment programmes. Separate departments within institutions established for and composed of minorities may also be a possibility.
69.The Special Rapporteur proposes that the Government, as a first step towards systematic and institutionalized inclusion, consider establishing a system of bilingual community liaison officers, to be placedin every public institution, including provincial administrations, police forces, education and health facilities and the armed forces, among others, to help overcome language barriers and to form a bridge between their respective communities and State institutions. The inclusion of women community liaison officers of Tamil and Muslim background in the police force in the Northern and Eastern Provinces, for example, would bring immediate benefits when handling sensitive cases such as sexual and domestic violence. Such a system should be provided with the necessary resources required to fulfil the mandate.
70.The Government must be commended for initiating the constitutional reform and the reconciliation process with a participatory approach, engaging the civil society, including minority communities, through public consultations. It is important that consultations be institutionalized at every stage of these key processes while keeping the communication channel open at all times. The public must be regularly and systematically informed of the status, the timelines and the outcomes as appropriate. The Public Representations Committee on Constitutional Reform, the Consultation Task Force on Reconciliation Mechanismsand the National Human Rights Commission have drawn staff from diverse ethnic and religious groups, including women; this serves as a good practice for other offices. It will be essential that every decision-making process and mechanism inspire the confidence of all communities that their views andaspirations are included and that a sense of national ownership over the long-awaited process of truth-seeking, reconciliation and healing is being forged.
Incitement to violence and freedom of religion or belief
71.The Special Rapporteur urges the strict application of the existing legislation to bring to justice perpetrators of hate speech aiming to incite discrimination or violence as well as hate crimes. Ending impunity for those who incite ethnic or religious hatred and violence must be a priority. The newly established Inter-Religious Council constitutes a positive practice and its role in mediating between different religious and belief communities and promoting tolerance and peaceful relations should be strengthened, particularly at the provincial level. The Government, including at the local level, should also ensure full protection of all minority places of worship as well as heritage.
Linguistic rights
72. Sri Lanka has put in place an important legal and policy framework necessary for multilingualism. However, targeted and strengthened measures are necessary to enable their actual implementation, with sufficient resources. The placement of bilingual community liaison officers in every public institution, as recommended above, should facilitate overcoming the practical difficulties experienced by Tamil speakers in accessing public services as well as dealing with law enforcement and the courts. The Government should take the necessary measures to guarantee a quality education in all three languages by, inter alia, addressing the shortage of Tamil-speaking teachers.
Education
73. Entrenched segregation in the education system reinforces the notion of differences and prevents children from fostering friendships across different identities. Recognizing the role of education as the foundation of unity, understanding and acceptance of differences that will pave the way for peaceful coexistence, the Special Rapporteur believes that the reform of the education system is an important long-term project that must be set in motion without delay. Steps to achieve integration within the school system should be based upon dialogue and confidence-building across communities. Moreover, the school curriculum should be reviewed with a view to ensuring that children learn about the shared values and commonalities of their society, together with the history, culture, religion and identity of the thers and not only of their own or the majority communities. Religion classes should cover all religions, and could be optional.Such measures will help minimize stereotypes, prejudices and suspicions with which the different communities might currently view each other. Other suggestions made to the Special Rapporteur included religion-or ethnic-neutral names for schools and the use of English as a language of instruction with optional afternoon classes in Tamil, Sinhala and other desired languages, depending on the composition of the student body.
Targeted actions needed for Sri Lankan minorities
74.To achieve peaceful coexistence after the long, devastating civil war, a comprehensive, well-planned and well-coordinated truth, reconciliation, healing and accountability process must take place, and it cannot be done overnight. However, almost two years after the change of Government, the Special Rapporteur notes the mounting frustrations with the pace of progress. It is important for the Government to put in place some immediate, important and concrete measures to clearly demonstrate its political will and commitment to better protect the country ’s minorities.
75.The specific policy interventions to address the needs of different minority groups should be based on accurate data that are disaggregated by, inter alia, gender, ethnicity, language and religious affiliation. Such data are crucial to highlight the vulnerability of the different population groups, including those that face multiple forms of discrimination, and enable legislators and policymakers to establish targeted programmes. Census questions should allow open and multiple responses that enable respondents to self-identify according to their national, ethnic, religious and linguistic affiliation, including multiple identities.
76. As a matter of priority, the Government must continue and step up the release to the civilian populations of the remaining 6,124 acres of the land currently held by the military in the North as well as other lands and coastal areas occupied by the military. A proper mapping exercise of all the lands currently occupied by the military must take place, and lands currently not in use or whose use cannot be adequately justified for military purposes must be returned without delay to their rightful owners in a condition that is usable. Where private lands have been acquired without due process or compensation, these lands must be returned and/or compensated for. Demilitarization of the North and East is not only urgent for its practical implications such as the livelihood of the local population, but required for symbolic purposes. With police powers having been transferred back from the army to civilian control, it will be important for the police to reflect the ethnic and linguistic composition of the local population to overcome practical barriers and rebuild trust.
77.While the country is undergoing an important reconciliation process, with constitutional reform and transitional justice and policymaking, the devastating impact of the war and violence on psychological well-being cannot continue to be ignored. Past acts of repression of culture and expression, ethnic intolerance and discrimination, as well as the crimes and violations committed during the conflict and the prevailing impunity, have severely damaged social and cultural norms and feelings of identity, belonging and trust. Therefore, the Government should also consider supporting psychosocial programmes and counselling and support interventions to help victims, especially women, overcome the trauma, which often manifests in complex and intertwined physical, emotional and mental health complications.
78. Intensified efforts by national authorities and the international community are required to facilitate the voluntary return of the displaced, including those evicted by LTTE in 1990, and to ensure the improvement and sustainability of returnee communities. The outstanding recommendations of the Special Rapporteur on the human rights of internally displaced persons following his visit to Sri Lanka in December 2013 (see A/HRC/26/33/Add.2, para. 56) should be implemented without further delay.
79.In the light of the Government’s commitment to repeal the Prevention of Terrorism Act, the Special Rapporteur recommends its immediate repeal, ensuring that any new antiterrorism legislation that replaces the Act meets all relevant international standards. The cases of all security-related detainees should also be reviewed immediately with a view to their swift release if there are no elements that would merit a prosecution; alternatively, those against whom there is evidence of involvement in serious crimes should be charged.
80.Minority women and children are particularly vulnerable to the effects of discrimination, social exclusion and poverty and their situation merits particular, focused attention. The Government should undertake research and formulate specific, targeted programme responses as appropriate. Targeted psychosocial and livelihood assistance for women in the war-affected areas, particularly the female heads of household and former combatants, need to be strengthened.
It is equally important to ensure that women’s voices are systematically heard and reflected in the transitional justice process. The amended Local Government Election Act and its quota of 25 per cent of places to be given to women should also consider the inclusion of minority women.
81.The Special Rapporteur recommends a review of all personal laws of minority communities (such as Kandyan, Tesawalamai or Muslim law) in line with international human rights standards, especially the 1951 Muslim Marriage and Divorce Act. Such reviews should be conducted in full consultation with the community concerned, including women’s groups. The supremacy of the Constitution must be guaranteed so that all fundamental rights provided for in the Constitution can be guaranteed for all without discrimination.
82.It will be crucial for the new plan of action for the Plantation community to be implemented with sufficient resources and with the participation of the community. The current progress of construction of houses must be continued to achieve the goal of 50,000 houses in the next five years. The Government’s commitment to provide title deeds for ownership of 7 perches of land per household will also require estate management cooperation in finding and allocating suitable lands. With respect to the estates that are privately owned, the Special Rapporteur, recalling the Guiding Principles on Business and Human Rights, underscores the responsibility of private companies to respect human rights, which is complementary to the responsibilities of the Government.
83.The Special Rapporteur draws the attention of the Government to the recommendations contained in her report on minorities and discrimination based on caste and analogous systems of inherited status (A/HRC/31/56) and urges their implementation as appropriate.
84. There is a lack of detailed information available regarding the overall situation of the smaller minorities. To fully understand their problems and respond appropriately, it is necessary for the Government to undertake further research of both a quantitative and qualitative nature for appropriate policy planning. The representatives of smaller minority groups should participate in a meaningful way in all stages of policy formulation, programme design and implementation of decisions that affect them.
Read the full report as a PDF the report of the Special Rapporteur on minority issues on her mission to Sri Lanka. or online here