Judging Sri Lanka’s credibility and commitments to human rights

December 21, 2018 Asia , HUMAN RIGHTS , Opinion , OPINION/NEWS

Reuters photo

 

By

Thambu Kanagasabai

 

 

The crucial UNHRC March 2019 session

 

 

The UN Human Rights Council’s March 2019 Sessions are poised to debate and discuss the Council’s Final Reports on Sri Lanka’s progress in implementing its 30-01-2015 Resolution which had more than 25 core recommendations. A Resolution as to Sri Lanka’s record of performance and its obvious failings with appropriate recommendations is also expected to be passed, and later to be forwarded to the United Nations and UN Security Council if warranted for further steps and action.

 

This Session is particularly crucial for the victimized Tamils who have pinned their hopes only on UNHRC and the United Nations to deliver justice and remedy their political grievances which were set in motion by Sri Lanka’s successive Governments since 1956.

 

Since the passing of the Resolution in October 2015, UNHRC Officials and Rapporteurs have been making several visits to Sri Lanka to monitor the progress and assess the ground situation in Sri Lanka. Most of their published Reports revealed a lack of progress, delaying tactics and inducing promises of compliance.

 

The sum result is nothing but disappointment while Sri Lanka is also defying the United Nations and UNHRC by challenging their rights to interfere with the internal affairs of Sri Lanka including its integrity and sovereignty. This approach and defiance is nothing but a slap on the International Organization’s Stature, and functioning after accepting and becoming a member of the United Nations and UNHRC bound to comply with their written obligations.

 

UNHRC Resolution of 30-01-2015 was aimed at promoting Reconciliation, Accountability and Human Rights in Sri Lanka. The Resolution welcomed certain steps of Sri Lanka and recommended other steps towards achieving the goals of reconciliation, accountability and justice including human rights. Among others, the Resolution welcomed Sri Lanka’s commitments to the devolution of political authority. When reviewing the progress in this matter, there is no iota of doubt that steps towards devolution still remain frozen. The powers already granted to the Provincial Councils, particularly over land and police remain blocked by the Central Government. In this situation, expecting the centre to devolve more powers is nothing but only a fiction.

 

Even the hope of reconciliation through a new constitution as hoped by the Tamils has evaporated viewing the ongoing battles for power waged by the major political parties against each other [United National Party versus Sri Lanka Freedom Party]. As long as the agenda of Buddhisisation and Sinhalisisation [Making Sri Lanka a Buddhist/Sinhala country – with no political rights for minorities Tamils, Muslims and Christians] continues, is sown and fed by Buddhist Clergy, communalists and extreme Buddhist Sinhalese coupled with majority hegemony, a permanent and just political settlement appears to be a distant dream.

 

About accountability, the less said the better and the answer is simple and easy, not an inch of progress has been made to bring those who are accused of war crimes, crimes against humanity to courts with neither prosecution nor the set up of an Internal Judicial Mechanism as undertaken and promised by the Sri Lankan Government to the International Community.

 

In the face of the defying statements of the President and the Prime Minister who have vowed to shield and protect the Security Forces from prosecution and appearing in courts, it would be futile to expect the fulfillment of accountability commitment by Sri Lanka which is a strict follower of the culture of impunity to Armed Forces since 1958. Even few prosecutions initiated against some members of the Security Forces have been dragging on for many years to the dismay and frustration of the traumatized victims, mostly Tamils.

 

With accountability being disowned and discarded by Sri Lankan state machinery, the victims seeking justice are left with no other alternative than to seek the intervention and assistance of United Nations, UNHRC and the International Community. It is hoped that the World Bodies will rise up to the occasion and buttress their credibility and commitments to uphold human rights of all citizens of all member countries.

 

Regarding UNHRC’s Recommendations to ensure “Full enjoyment of human rights by all members of Sri Lankas’ population” it can be stated that full enjoyment for Tamils has been stripped and curtailed since the passing of the draconian Prevention of Terrorism Act [PTA] of 1979. The heavy presence of Army Personnel in the North and East is diluting the basic human rights of movement of people and their rights to live and earn their livelihood in their own historical and traditional lands. The Security forces [95% Buddhist/Sinhalese] are mostly engaged in surveillance of the civilians and instilling fear and insecurity even after the end of the war almost 10 years ago. Besides military is engaged in civilian activities like running farms in civilian lands running Hotels, shops and even Primary Schools to Tamil children.

 

To summarise, Sri Lanka has comprehensively failed to implement the following UNHRC Recommendations:-

 

[i] “Expediting the process of delivery of durable solutions for all internally displaced persons.”
According to I – Trans Report [International Tamil Refugee Assistance Network] published in October 2018, 90,000 families in Northern Province are homeless and living in shanties and slums” This process is haphazardly carried out without any firm road map or agenda.

 

[ii] Torture is still practiced and going on as per the UN Rapporteurs and media.

References:-
Dozens of men describe rape, torture by Sri Lanka government

https://nypost.com/2017/11/08/dozens-of-men-describe-rape-torture-by-sri-lanka-government/

Torture of Tamil detainees in Sri Lanka has continued, says charity https://www.theguardian.com/world/2015/aug/13/torture-tamil-detainees-sri-lanka-report-alleges

 

[iii] An independent oversight of the security system has not yet been set up. It is doubtful it will ever be carried out due to the present structure and inbuilt system.

 

[iv] Independent, impartial and transparent judicial mechanism manned by impartial professionals has still not been set up to redress past abused and violations to ensure credible accountability process including initiation of prosecutions. Viewing the state’s policy and culture of impunity, this recommendation will probably face a slow death.

 

[v] Has failed to honor its commitment to the devolution of political authority to the Northern and Eastern Provinces.

 

[vi] Has failed to implement its own Lessons Learnt and Reconciliation Commission [LLRC] recommendations.

 

[vii] Sri Lanka’s proposal to establish a judicial mechanism with a Special Counsel to investigate all allegations of violations, and abuses of human rights and violations of International Humanitarian Law, remains almost dead.

 

[viii] Recommendation to reform Sri Lanka’s domestic law is yet to be initiated, including “Introduction of effective Security Sector Reforms as part of International Justice Process.” So far there is neither any indication nor any steps taken to look in to these matters.

 

[ix] Recommendation to accelerate the return of land to its rightful civilian owners remains unfulfilled. It is estimated that 16,105 acres of land in the Northern Province and 3185 acres of land in the Eastern Province remain in the hands of Security Forces, although there were occasional releases of few acres of land with much publicity and fanfare. The recommended “Ending of Military involvement in civilian activities” is yet to begin and no firm instructions have still been issued to this effect.

 

[x] Recommended repeal of Prevention of Terrorism Act [PTA] is yet to materialize which is generously and exclusively applied to Tamil youths. An alternate draft is lying awaiting its passing and full effect, which is said to be like an old wine in a new bottle.

 

[xi] Recommendations to ensure that all Provincial Councils are able to operate effectively in accordance to the 13th Amendment to the constitution has been treated contemptuously by the Centre despite the Provincial Councils’ repeated requests to implement the provisions such as granting Police and Land powers to the Provinces.

 

[xii] Recommendation to Government to prohibit acts of torture, rape and sexual violence by Security Forces is yet to be fully complied with as Reports of Torture and Sexual violence have been exposed by UN Officials, with hardly any investigation and punishment being meted out to the perpetrators.

 

 

However, the Sri Lankan Government has passed the Office of Missing Persons Act and an Act dealing with Enforced Disappearances. Sad to say the proposed Acts, with many flaws, are still not operational with no firm commitment by the Government to deal with the approximate 65,000 or more persons said to have disappeared during the final stages of war. Most of the disappeared are those who surrendered to the Military during the war and those arbitrarily arrested by the Military/Police during and after the war. The Government has also refused to provide details and statistics as to the identities of disappeared, surrendered, detained or killed.

 

In summary, it is abundantly clear that the Sri Lankan Government had deliberately and stubbornly discarded the core recommendations of the UNHRC and has made a mockery of Justice, Accountability and Reconciliation as promoted and safe-guarded by the UNHRC, United Nations and UN Security Council.

 

There is no doubt that Sri Lanka will continue its policy of holding out promises and delaying tactics to weaken the Resolution of UNHRC and United Nations hoping for ultimate slow death of the Resolutions.

 

There is no gainsaying of the fact that Sri Lankan Tamils can be considered the worst sufferers of human rights in the world since 1958 and the International Community, UNHRC and United Nations simply ignored and miserably failed to stop the hidden agenda of Genocide set in motion from 1948 against the minority communities to make Sri Lanka a Buddhist/Sinhala State which reached its climax in 2009 and still continues at rapid speed.

 

It is of the utmost urgency and importance that UNHRC, United Nations and UN Security Council initiate appropriate steps to ensure justice and allow the Tamils to choose their own destiny through a Referendum in the Northern and Eastern Provinces [Traditional and historical homeland of the Tamils for centuries] in accordance with UN Conventions under UN supervision.

 

To ensure and uphold accountability, a reference to the International Criminal Court and setting up of an UN sponsored international investigation must be given priority for consideration by the UNHRC, United Nations and Security Council.

 

The victimized Tamils still pin their hopes on the UNHRC, United Nations and UN Security Council to guarantee their dignified existence in their traditional and historical homeland in Sri Lanka.

 

 

 

 

Thambu Kanagasabai

Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka

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2 Comments

  1. S Siva December 24, at 18:37

    Thanks for an informative article with historical lapses, time passing exercises, wrongdoing by the successive governments and global organizations, denial of Justice and war crimes committed with impunity by the successive Sinhala Buddhist racist governments. This is due to the fact that the so called International community, Malayalee mafias, alleged corrupt and criminal minded North Indian politicians' activities against Tamils and global politics are deteriorating from moral, ethical, fair values due to many issues including political corruption, power greediness, business and trade are more important than accountability, genocide and Justice. UN, ICC, UN Security Council, UN Human Rights, WTO and many other organizations are worthless, meaningless and a waste as powerful abusers continue to impose their will, their friends and allies can continue to commit crimes against humanity and genocide with impunity. One may wonder whether are we live in a civilized society and whether Western nations can call themselves as saviours or defenders of so called democracy! Democracy has been a failure in most countries as two party system allows two political parties become act like mafias and control the politics and impose their views. At the end of Cold war, Russia has become inactive in global politics that fueled for illegal attacks, invasions and destruction of nations. This paved way for powerful nations to attack and invade other nations for fake or non-existing reasons, support genocidal regimes as oppressing regime leaders know the weaknesses of powerful leaders and use corruption including paid vacations, gifts, etc to evade from accountability and Justice. We are in a period of "Kali Yugam" (??? ?????) that means, there is going to be a massive destruction of mankind and humanity is sooner than later. We may have heard, seen, and experienced Tsunami and most Tamils, one of the oldest civilization has simply submerged /disappeared as a result of it. Natural and Environmental disasters are inevitable as politicians are insane and they have no respect to humanity and mankind. Powerful nations invasions, colonialism and oppressive regimes are responsible for today's refugee crisis, people losing identity (values, cultures, language, civilization, religion, history), massive human sufferings, destruction and environmental damage and so on. No wonder that Sri Lanka Sinhala Buddhist chauvinistic leaders take advantage of Global political madness, corrupting leaders to gain support to their inhuman activities and so on. No surprise that few rogue nations that are undemocratic and authoritarianism but defy so called Western and International Community decisions as there is plenty of mistrust and fear of being attacked by powerful nations. World knows that many Western nations while boasting democracy supported South African Apartheid regime against ANC and the native South Africans. So long as "double standards policy" exists, there is unlikely any peace prevail! Unless UN and ICC have become a Global Justice Centre with independent Judges, no political involvement and Experts to deliver Justice where every leader irrespective of their nations' standing is accountable, innocent blood will continue to be shed, peace is unlikely to prevail on earth, state oppression, refugees fleeing and human sufferings will go on, more and more new freedom struggles will commence. It looks like only God can save this planet and bring peace!

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  2. Pon Kulendiren December 24, at 11:15

    Judging Sri Lanka’s credibility and commitments to human rights I am being a writer and not a lawyer who wish to make few brief observations and comments about this informative article written by an experienced HR lawyer 1 It is well-known fact the Sri Lankan Judiciary is a biased politically , when it comes to decisions pertaining to human rights of minorities. A typical example is amalgamation of North and East that was agreed with India but later overruled by Judiciary. Some may argue the Supreme court was not biased in recent decision regarding Presidents action. But that decagon involves all communities. It was a decision that was linked to the deteriorating economy, and tourism and the pressure from many countries to save democracy It is verdict associated with the and constitution n Sri Lanka and not issues related to HR 2 Even in appointing Supreme court most of the Judges are appointed from the Sinhalese community. In the last hearing on Presidents unlawful decisions all seven judges are from Majority community. We have 7: 3 ratios of the ethnic groups. Hence, I am of the view that even SC judges and appointment to Defense forces and Administrative sector should be appointed in that ratio. Just writing in Singhalese, Tamil and English in boards will not do. 3 As pointed by a retired Supreme court Judge the judiciary appointment to Chief Justice and Attorney general to are based. There are many cases there appoints of judges with political links are appointed to Supreme court 4 When it comes to interpretation of the clauses of the constitution Singhala version prevails. In recent case on constitution it came to light a text in singhala language crept in the and there was no equivalent transaction of it n Tamil and English. Was it purposely done by the AG? 5 A case was filed against a retired CJ for his speech which amounts to contempt of court. This retired CJ bad social record. Even the Professor of law aided and abetted with the President in violating the constitution 6 It should be noted that in the recent case of saving democracy prominent lawyers appointed from all communities to defended democracy. Even in the arguments a lawyer from the majority community threatened a lawyer from Minority community 7 When it coming HR resolutions passed by UN, the delaying tactics is the strategy applied by the Sri Lankan government. In many cases that involves Minority community investigations are delayed for political reasons. The government of Sri Lanka is of the view that the defense forces are not involved HR violations as they must save the country from Terrorists from the minority community. Even after the war, any supporting statement comments about the Tamil rebels are treated as an offence. The government does not know the difference between Terrorist group and Rebels fighting for the rights. It is clearly defined in UN charter the difference between rebels and Terrorists. Rebels fights for the right rights of an ethnic group as in case in South Africa under Mandela’s leadership The rebels who fought for the rights are kept as political prisoners with no cases filed aginst them They are undergoing mental torture Some army personal who were sentenced to death for serious HR violations are living happy life in Jail at Tax payers money 8 Even if HRC.-passes resolutions after resolutions . It is only on paperer. There is good chance to be vetoed e China, Russia, or US as they have political and economic interest in Sri Lanka. We have seen this in many recent projects in Sri Lanka 9 About the powers given to Provincial council it is an eyewash. The governor dictates terms to CM although people do not elect him. CM has no power to dismiss a PC minister after inquiry for corruption Law should be amended to ensure that appointment of the governor position is by the PC cabinet. And his powers should be clipped. I feel that having a Governor is a waste of money. What is the need to have a governor not elected by people for PC? It appears to be a political appointment. 10 In conclusion I am of the view that HR violations will continue in Sri Lanka so long as the attitude of supremacy by the majority community continues , Promises are made by Politician o grab the power. Politicians never honor their practices. It is the culture in Politics.

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