Asia Report N°243 | 20 February 2013
Executive Summary
Government attacks on the judiciary and political dissent have accelerated Sri Lanka’s authoritarian turn and threaten long-term stability and peace. The government’s politically motivated impeachment of the chief justice reveals both its intolerance of dissent and the weakness of the political opposition. By incapacitating the last institutional check on the executive, the government has crossed a threshold into new and dangerous terrain, threatening prospects for the eventual peaceful transfer of power through free and fair elections.
Strong international action should begin with Sri Lanka’s immediate referral to the Commonwealth Ministerial Action Group (CMAG) and a new resolution from the UN Human Rights Council (HRC) calling for concrete, time-bound actions to restore the rule of law, investigate rights abuses and alleged war crimes by government forces and the Liberation Tigers of Tamil Eelam (LTTE), and devolve power to Tamil and Muslim areas of the north and east.
Sri Lanka is faced with two worsening and inter-connected governance crises. The dismantling of the independent judiciary and other democratic checks on the executive and military will inevitably feed the growing ethnic tension resulting from the absence of power sharing and the denial of minority rights. Both crises have deepened with the Rajapaksa government’s refusal to comply with the HRC’s March 2012 resolution on reconciliation and accountability. While the government claims to have implemented many of the recommendations of its Lessons Learnt and Reconciliation Commission (LLRC) – a key demand of the HRC’s resolution – there has in fact been no meaningful progress on the most critical issues:
• the government has conducted no credible investigations into allegations of war crimes, disappearances or other serious human rights violations;
• rather than establish independent institutions for oversight and investigation, the government has in effect removed the last remnants of judicial independence through the impeachment of the chief justice;
• there has been no progress toward a lasting and fair constitutional settlement of the ethnic conflict through devolution of power;
• the military still controls virtually all aspects of life in the north, intimidating and sidelining the civilian administration;
• more than 90,000 people remain displaced in the north and east, amid continued land seizures by the military, with no effective right of appeal and no fair process for handling land disputes;
• government security forces have broken up peaceful Tamil protests in the north, detained students on questionable charges of working with the LTTE and actively harassed Tamil politicians;
• the government has responded with force to protest and dissent in the south, too, deploying troops to prevent the newly impeached chief justice and supporters from visiting the Supreme Court while pro-government groups attacked lawyers protesting the impeachment.
Analysts and government critics have warned of Sri Lanka’s growing authoritarianism since the final years of the civil war, but developments over the last year have worsened the situation. The president’s willingness and ability to push through the impeachment – in the face of contrary court rulings, unprecedented opposition from civil society and serious international concern – confirms his commanding political position. The move completes the “constitutional coup” initiated in September 2010 by the eighteenth amendment, which removed presidential term limits and the independence of government oversight bodies. It has sent a clear message to domestic critics that their dissent is unwelcome.
The consolidation of power paves the way for moves that could further set back chances of sustainable peace. The president and his two most powerful brothers – Defence Secretary Gotabaya and Economic Development Minister Basil – have signalled their intention to weaken or repeal the provinces’ already minimal powers. As the government makes explicit its hostility to meaningful power sharing between the centre and the Tamil-speaking north and east, Tamil identity and political power are being systematically undermined by the military-led political and economic transformation of the northern province.
Recent months have also seen an upsurge in attacks by militant Buddhists on Muslim religious sites and businesses. The government has done little to discourage these. Should such provocations continue, the remarkable moderation of Sri Lanka’s Muslims could face serious tests. Given the country’s history of violent resistance to state power perceived as unjust, the authoritarian drift can only increase the risk of an eventual outbreak of political violence.
Sri Lankans of all ethnicities who have struggled to preserve their democracy deserve stronger international support. The HRC’s 2012 resolution was an important first step, but more is needed. This should begin with a stronger HRC resolution in March 2013, which must demand concrete reforms to end impunity and restore the rule of law; mandate the Office of the High Commissioner for Human Rights (OHCHR) to monitor violations and investigate the many credible allegations of war crimes committed in the final months of the war by both sides; and, where possible, identify individuals most responsible.
The Commonwealth secretary general should formally refer Sri Lanka to the Commonwealth Ministerial Action Group (CMAG), which should insist that the government take substantial steps to restore the independence of the judiciary. Were it to refuse, the Commonwealth should relocate its November 2013 heads of government meeting, currently scheduled to take place in Colombo, or at the very least participants should downgrade their representation.
All governments and multilateral institutions with active ties to Sri Lanka must rethink their approach and review their programs in light of Colombo’s deepening and dangerous authoritarian drift. This includes military-to-military relations and bilateral and multilateral development assistance, including from the UN, World Bank, Asian Development Bank and International Monetary Fund.
Recommendations
To the government of Sri Lanka:
1. Comply with current and future HRC resolutions, including by implementing the core recommendations of the LLRC on governance, the rule of law, accountability, devolution of power and reconciliation, through a process that includes opposition political parties and independent civil society representatives of all ethnic communities.
2. Support meaningful reconciliation by publishing the full LLRC report in Sinhala and Tamil, allowing the national anthem to be sung in Tamil at official events and holding public ceremonies to honour the death and suffering of civilians from all communities.
To the UN Human Rights Council (HRC):
3. Adopt a new, stronger resolution on Sri Lanka at its 22nd session, which:
a) notes clearly the government’s refusal to respect the previous resolution by failing to implement the most important LLRC recommendations and refusing to investigate credibly allegations of grave violations of international humanitarian law;
b) details specific measures the government must take within the coming year;
c) requests the government to investigate independently the credible allegations of international humanitarian law violations;
d) tasks OHCHR with monitoring and reporting to the council on progress in implementing the resolution and on any violations, and with undertaking investigations and making appropriate recommendations with respect to violations allegedly committed in the final months of the war, including by compiling a list of individuals about whom there is credible evidence.
e) encourages the government to invite those special rapporteurs with outstanding requests to visit Sri Lanka, and requests them to compile a joint report on the country’s compliance with its international obligations.
To the Commonwealth Secretariat and member states:
4. Refer Sri Lanka to the Commonwealth Ministerial Action Group (CMAG), which should insist that the government take substantial steps to restore the independence of the judiciary, including, at a minimum, by:
a) reestablishing earlier constitutional provisions – abolished by the eighteenth amendment – to ensure a less politicised selection of judges;
b) changing current parliamentary provisions for removing senior judges to bring them in line with international standards; and
c) abandoning government plans to limit a chief justice’s term to three years.
5. Relocate, should the government fail to make these changes, the November 2013 heads of government meeting away from Colombo, or downgrade representation to ministerial level.
To the UN Secretary-General:
6. Use his powers under section 99 of the UN Charter to establish a commission of inquiry into alleged violations of international law, should the HRC decline to do so or to task OHCHR to undertake investigations.
7. Establish a mechanism to “monitor and assess the extent to which the Government of Sri Lanka is carrying out an effective domestic accountability process”.
To the UN Secretariat, country team and agencies in Sri Lanka:
8. Undertake a “human rights audit”, led by the country team, of all programming to examine where and how these can better integrate human rights protection, including a survey of the protection needs of past and present humanitarian workers, both in and out of Sri Lanka.
9. Review Sri Lanka’s contributions to peacekeeping operations and reject its participation
until credible investigations of war crimes allegations and prosecutions are carried out.
To the governments of India, the U.S., EU, UK, Canada, Australia, Norway, Switzerland, Japan and South Africa:
10. Investigate, gather and share evidence regarding alleged war crimes and human rights abuses by government forces and the LTTE where possible, support victims and offer witness protection when necessary.
11. Refrain from accepting the diplomatic credentials of Sri Lankan military officers against whom there are credible allegations of serious crimes; cease trainings – other than in human rights – and joint exercises with the military; and apply targeted pressure on government leaders, including restrictions on personal travel until the government complies with HRC resolutions.
To the World Bank, Asian Development Bank and International Monetary Fund:
12. Review all programs in Sri Lanka and conduct a study of governance and land issues and how these affect the sustainability and equity of their development assistance.
13. Press strongly, both privately and publicly, for the government to adopt the LLRC’s recommendations, particularly on reestablishing judicial independence and an independent bribery commission, enacting a freedom of information law, protecting the rights of citizens to speak freely and contribute to the formulation of development policies, and reforming policies on land and land disputes.
Colombo/Brussels, 20 February 2013
Full report @ ICG