The Special Rapporteur on the promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Fabián Salvioli, has said that “over the past 18 months, the human rights situation in Sri Lanka has seen a marked deterioration” and that “this is not conducive to advancing the country’s transitional justice process and may in fact threaten it.”
Salvioli’s report (https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2F48%2F60%2FAdd.2&Language=E&DeviceType=Mobile) is tobe presented to the UN Human Rights Council (UNHRC) during its 48 th. Session to be held from September 13 to October 1.
The report says that the previous Lankan government headed by President MaithripalaSirisena had promised to undertake constitutional reforms, strengthen oversight bodies, curb corruption and engage with the international community to provide accountability for past abuses, including through implementation of Human Rights Council resolution 30/1. But all this went up in smoke after the Presidential election in November 2019, which threw up a new administration led by President Gotabaya Rajapaksa.
The latter proceeded to withdraw Lanka from its international commitments regarding transitional justice, including in respect of resolution 30/1.
“This political shift has translated into a slowdown in the transitional justice agenda and a reversal of some of the progress made during the previous administration,” Salvioli says.
He notes that under the earlier regime, the Criminal Investigation Department (CID) had made progress in investigating some violations, enabling some indictments and arrests. The High Court Trial-at-Bar held a hearing in the case of disappeared journalist PrageethEknaligoda. A High Court at Bar was appointed for the Weliveriya case. The Attorney General reopened investigations into the 2006 killing of Tamil students in Trincomalee; and indictments were served against suspects in the murder of 27 inmates at the Welikada Prison and against suspects in the 2013 Rathupaswela killings.
“However, progress on several emblematic cases has stalled or encountered serious setbacks under the current administration. Investigations into military and security officers allegedly linked to serious human rights violations have in several instances been suspended. In some cases, the alleged perpetrators have been promoted despite the allegations against them. The commission of inquiry to investigate allegations of political victimization of public servants established by the current President has intervened in favor of military intelligence officers in ongoing judicial proceedings, including in the 2008 murder of journalist Lasantha Wickrematunge and the 2010 enforced disappearance of Prageeth Eknaligoda. It has also issued directives to the Attorney General to halt the prosecution of former Navy Commander Admiral Wasantha Karannagodaand former Navy Spokesman Commodore D.K.P. Dassanayake in relation to the killing of 11 youths by Navy officers, which have been rejected by the Attorney General. The Court of Appeal also issued an interim injunction order staying the case, following a writ submitted by Mr. Karannagoda. The case is due to be heard by that Court,” he points out.
Salvioli charges that the above-mentioned Commission of Inquiry 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.
In April 2021, Prime Minister Mahinda Rajapaksa tabled a resolution seeking legislative approval to implement the recommendations of the Commission of Inquiry to institute criminal proceedings against investigators, lawyers, witnesses and others involved in some emblematic cases and to dismiss several cases currently pending in court. A special Presidential Commission of Inquiry composed of three sitting judges is to decide on the commission’s recommendations, Salvioli points out.
Efforts to ensure accountability have been further obstructed by reported reprisals against several members of the Criminal Investigation Department involved in the past ininvestigations into a number of high-profile killings, enforced disappearances andcorruption. Some have been arrested and later released on bail, and another has left thecountry, he adds.
OHCHR’s Intervention
In this context, Salvioli welcomes the adoption in March 2021 of Human Rights Council resolution 46/1, by which the Council decided to strengthen the capacity of OHCHR to collect and preserve evidence for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka and present recommendations to the international community on how justice and accountability can be delivered. The adoption of the resolution was opposed by the delegation of Sri Lanka, which cited ongoing domestic remedies and independent processes.
Truth Commission, Missing Persons
Salvioli regrets that no Truth Commission has been established to date. During the period 2015–2019, progress was reported in the work of the Office on Missing Persons (OMP). It adopted a psycho–social support strategy for families of disappeared persons in consultation with victims and other stakeholders and participated in forensics and archiving training. In July 2019, the Office on Missing Persons issued a protection strategy and established a dedicated unit for victim and witness protection that has developed procedures for the documentation of protection concerns and has reportedly intervened in relation to attacks against family members and other stakeholders involved in court proceedings in disappearances cases
“However, since 2020 progress has stalled and the Office has faced interference from the Government, which reportedly intends to review the law establishing and defining the mandate of the Office,” Salvioli notes.
19 th.Amendment
On 22 October 2020, the Lankan parliament adopted the twentieth amendment to the Constitution introducing fundamental changes in the relationships and balance of power between the different branches of government. The amendment, which the Government argues was adopted following constitutional procedures, has strengthened the power of the President and the executive, effectively reversing many of the democratic gains introduced by the nineteenth amendment, adopted in 2015, Salvioli points out.
“It has also significantly weakened the independence of several key institutions, including the Human Rights Commission of Sri Lanka and the National Police Commission (whose Chairs can now be appointed and dismissed by the President), as well as the judiciary (senior judges and members of the Judicial Service Commission are now appointed by the President). The Government contends that institutional independence remains unchallenged despite the changes introduced by the new amendment,” he says.
Militarization
Salvioli notes that there has also been a deepening and accelerating militarization of civilian government functions. On 29 December 2019, the Government brought 31 public entitiesunder the oversight of the Ministry of Defense, including the police, the Secretariat for Non–Governmental Organizations, the National Media Centre and the TelecommunicationsRegulatory Commission. It also appointed 25 senior army officers as chief coordinatingofficers for maintaining COVID-19 protocols in all districts. In July 2021, the Governmentreported that most of the public entities that had been under the oversight of the Ministry ofDefense were no longer under its purview.
Terrorism Act
While the previous Government had initiated alternatives to the existing draconian Prevention of Terrorism Act, the present administration has failed to make any progress in this regard. “ Instead, in March 2021 the President issued a set of regulations on de–radicalization and countering violent extremist religious ideology under the Prevention of Terrorism Act that allows for the arbitrary administrative detention of people for up to two years without trial.”
“Several arbitrary arrests under the Prevention of Terrorism Act have been reported in the past year, many involving Tamils and Muslims. Furthermore, over 300 Tamil and Muslim individuals and organizations have been labelled as terrorist and included in an extraordinary issue of the official gazette,” Salvioli says.
However, he notes that the Government has commenced a process of reviewing some provisions of the Act and has accordingly released detainees held in extended judicial custody.
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