Sanja de Silva Jayatilleka
On Wednesday, 15th of November at 2.30 pm, Sri Lanka will come under review at the UN Human Rights Council in Geneva and will have to account for its conduct, answer questions posed to it by other countries, and decide which recommendations it accepts.
A sample of questions posed in advance, to be answered on Wednesday, are as follows:
Germany: In September 2017, the parliament of Sri Lanka has taken the bill on enforced disappearances from its agenda. Why was this the case and when does the parliament plan to reconsider the bill?
Belgium: welcomes Sri Lanka’s efforts regarding transitional justice. What progress has been made regarding the establishment of a Truth and Reconciliation Commission?
Estonia: In the national report you mention that a certain mechanism has been created to ensure that the commitments under UN HRC Resolution 30/1 are met. Could you elaborate on the work so far done by that mechanism?
What is the current state of play with regard to the review and repeal of the Prevention of Terrorism Act in ensuring that it meets international human rights standards?
Norway: When will the Prevention of Torture Act be repealed and replaced by legislation that is fully compliant with human rights standards?
UK: When does the Government of Sri Lanka expect to have transitional justice mechanisms in place, to ensure accountability and give greater certainty of non-recurrence, as set out in the UNHRC Resolution 34/1?
USA: We are disappointed in the lack of movement toward holding security forces and government officials accountable for human rights violations and abuses. When does the government plan to establish a credible judicial mechanism to investigate allegations of violations and abuses of human rights, and violations of international humanitarian law?
We are concerned by reports of continued abuses by some members of the security forces, including alleged incidents of torture, sexual violence and arbitrary arrest. What steps is the government taking to end these abuses and, when will the government repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation that complies with international law and is less susceptible to serving as a pretext for human rights violations and abuses?
We commend Sri Lanka for its work on constitutional reform, but the process has moved slower than anticipated. How does the government intend to proceed with constitutional reform?
How is the government using the recommendations in the Consultation Task Force report to guide it through an inclusive reform process?
Switzerland: What are the reasons for the delay in implementing the resolutions 30/1 and 34/1? What are the milestones and benchmarks foreseen in the further implementation?
When will the Office on Missing Persons (OMP) become fully operational? What kind of international involvement do you plan in the establishment and running of the OMP?
This review, known as the Universal Periodic Review (UPR), is described as a ‘peer review’ because it is conducted by the membership of the Council and is conducted every 4 and a half years. All UN member states are subjected to this review, and each review is coordinated by 3 Ambassadors selected by drawing lots among the membership, known as ‘The Troika’. Sri Lanka’s UPR this time will be coordinated by the Ambassadors of Burundi, Republic of Korea and Venezuela. When the inaugural UPR of the UN Human Rights Council was held in April 2008, Sri Lanka’s Ambassador/Permanent Representative Dr. Dayan Jayatilleka was a member of the very first Troika, for Bahrain, Ghana and Bangladesh.
In order to conduct the review, the UPR process takes into account 3 reports, which are already posted on the UNHRC website:
· The country under review has to submit a report known as the ‘National Report’ which includes its progress on earlier recommendations and its own further commitments. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/247/34/PDF/G1724734.pdf?OpenElement
· The Office of the UN High Commissioner for Human Rights (OHCHR) produces a report which is a compilation of all UN reports on Sri Lanka.
· ‘Summary of Stakeholder Submissions’, which are submissions on Sri Lanka made by NGOs civil society, academic institutions, regional groups, human rights defenders etc. which are summarized by the office of the High Commissioner. The current report includes 49 such submissions.
The review is conducted through an interactive dialogue between the country under review and the UPR Working Group. For the purpose of the UPR, the entirety of the voting members of the Council (which is 47 countries) converts into a Working Group. Non-members can also participate and it is reported that more than 100 countries requested make statements on Sri Lanka.
At the end of this process, a summary of the proceedings is prepared by the Office of the High Commissioner, including the recommendations made by other countries, and Sri Lanka’s responses, including those that Sri Lanka accepts that it should implement.
This report will be distributed on Friday the 17th November at 5 p.m. to the Council, which will then proceed to its adoption. Once adopted, Sri Lanka will be reviewed in the future on the basis of those recommendations that it accepted.
Ministry of National Policies and Economic Affairs
It was reported that in the Daily News online edition of November 11th 2017 that “The delegation of Sri Lanka will be headed by National Policies and Economic Affairs Deputy Minister Dr. Harsha de Silva.” This seems bizarre considering that the coordinating Ministry and the focal point for the National Report is the Foreign Ministry!
The review is specifically to do with the examination of Sri Lanka’s Human Rights Record, and before it was shortsightedly abolished by the previous administration, it was the Ministry of Human Rights that prepared the National Report, attended the sessions, made decisions on whether or not to accept the recommendations and coordinated the implementation of the recommendations.
At the time, the Attorney General’s department was closely associated with the UPR process and reviewed all recommendations and participated in Sri Lanka’s submissions and replies to questions. Mr. Yasantha Kodagoda and Mr. Shavindra Fernando regularly represented the AG’s department in the delegation.
In the current Compilation of UN reports, the UN country team has stated that “The United Nations country team also noted that an inter-ministerial committee had been appointed to implement the National Human Rights Action Plan (2011-2016) but the lack of a dedicated Ministry to expedite action had resulted in challenges for follow-up.”
Rather than shunting the responsibility for Human Rights to inappropriate ministries, which can only appear to others as a lack of seriousness and commitment on the part of Sri Lanka to its commitments, President Sirisena should seriously consider re-establishing the Ministry of Human Rights under a dedicated Minister who will reflect the President’s own views.
In the meantime, if the Minister of Foreign Affairs Mr. Marapana was too busy to attend, it should have been the State Minister for Foreign Affairs Mr. Vasantha Senanayaka who should be leading the team from Sri Lanka to Geneva this week for the UPR, not a Deputy Minister from the Economic Affairs Ministry! Don’t they have enough of their own work to do, with the Budget etc.?
Apart from the sample of advance questions cited above, there are many other serious issues and concerns emanating from the 2 reports that Sri Lanka has to respond to. The compilation of UN reports includes those of the Special Rapporteurs (SR) apart from the Committee on the Protection of the Rights of All Migrant Workers, the Committee on the Elimination of Racial Discrimination, the Working Group on Enforced or Involuntary Disappearances, the United Nations country team in Sri Lanka.
In the Compilation of UN reports, the SR on Torture notes with concern that:
“…torture and ill-treatment, including of a sexual nature, still occurred, in particular in the early stages of arrest and interrogation…and that the gravity of the mistreatment inflicted increased for those who were perceived to be involved in terrorism…”
It has a lot more to say including:
“The Committee against Torture remained seriously concerned that torture was a common practice carried out in relation to regular criminal investigations in a large majority of cases by the Criminal Investigation Department of the police, regardless of the nature of the suspected offence.”
“The Committee noted with concern that the practice of so-called “white van” abductions of Tamils had continued in the years following the end of the armed conflict. It also noted that people suspected of having even a remote link with the Liberation Tigers of Tamil Eelam had been abducted and subjected to brutal torture, including sexual violence and rape of men and women by the military and the police in unacknowledged places of detention.”
There are very serious allegations that have to be responded to credibly and competently. For instance:
“The Working Group on Enforced or Involuntary Disappearances recommended that the Government take decisive action and give clear orders at the highest level to stop surveillance, threats, intimidation, harassment, including sexual harassment, and abuses against relatives of disappeared persons and those acting on their behalf.”
“The Committee on the Elimination of Racial Discrimination emphasized that women were particularly vulnerable to certain forms of racial discrimination, such as sexual violence during armed conflict. It recommended that Sri Lanka ensure the protection of women in the post-conflict period…”
“The Human Rights Committee was concerned about allegations of sexual violence against women in the context of detention, resettlement and other situations that required contact with security forces.”
“The Committee on the Elimination of Racial Discrimination was alarmed by reports of hate speech, incitement to violence and violent attacks, including riots, against ethnic and ethno-religious minority groups, which had resulted in deaths, injuries and destruction of property.”
The United Nations Country Team noted that:
“Levels of impunity were particularly high with respect to certain offences, for instance, sexual violence, and that the 2015 Grave Crimes Abstract reflected only one rape conviction in 2015.”
The Working Group on Enforced or Involuntary Disappearances notes:
“The chronic pattern of impunity still existed with regard to cases of enforced disappearance. It recommended that the Government establish a judicial accountability mechanism that integrated international judges, prosecutors, lawyers and investigators; carry out all investigations, prosecutions and judicial proceedings in accordance with the principle of due diligence.”
This is horrendous. Sri Lanka has to ensure that this process is competently handled. If in fact at least some of these allegations are true, it is of grave concern and the government is answerable to its own citizens for its lack of progress.
These are just a small sample of concerns which will be aired before the rest of the world. The ‘Stakeholder submissions’, as one can imagine, range from “indiscriminately marginalized and discriminated against the LGBTIQ community and sex workers by means of criminalizing these lifestyles”, to the Transnational Government of Tamil Eelam (TGTE) noting that:
“…getting justice for victims of war crimes and crimes against humanity received a setback, due to the Government’s unwillingness to prosecute civilian and security forces for having committed mass killings of Tamils and rape. Similarly, TAG emphasized that Sri Lanka lacked an effective and appropriate mechanism for the investigation and prosecution of war crimes, crimes against humanity and genocide committed against the Tamil people by the Sri Lankan State.”
The National Report
The Government’s National Report dated 24th August 2017, commits to “reforming the powers of the executive presidency”…and “meaningful power-sharing arrangements through the devolution of power”:
“The current constitutional reform agenda focuses on reforming the powers of the executive presidency, delivering meaningful power-sharing arrangements through the devolution of power, and improving the electoral system by moving from a proportional representation system to a mixed system… These priorities are currently reflected in the NHRAP 2017-2021”
Really? The 19th Amendment reforming the powers of the Presidency was passed in 2015. Does President Sirisena know his powers are to be ‘further reformed’ beyond the 19th amendment and that Sri Lanka has announced this commitment in August this year, as part of the UPR process?
The National Report unambiguously re-states its commitment to Resolution 30/1 of 2015. “In December 2015, the government established the Secretariat for Coordinating Reconciliation Mechanisms (SCRM) under the Prime Minister’s Office to ensure that the commitments under UNHRC Resolution 30/1 are met.”
The government also reports the steps already taken to operationalize Transitional Justice:
“The government has taken steps to establish the four transitional justice mechanisms committed to under Resolution 30/1. First, in August 2016, it enacted legislation to establish the OMP. In July 2017, the OMP was assigned to the MNIR. Second, a Working Group comprising senior academics, government officials and transitional justice experts was appointed to draft legislation on a truth-seeking mechanism.”
The UPR is a human rights mechanism that is applied equally to all UN member states. It attempts to ensure that Human Rights improve around the world and provides assistance to member states to meet their Human Rights obligations and to share best practices. It is up to Sri Lanka’s delegation to participate in the process with caution, alertness and efficacy.