By Mandana Ismail Abeywickrema
A damning report by the European Union (EU) on extending the Generalised System of Preference Plus (GSP+) facility to Sri Lanka, states that on the basis of the material before the panel, it has been concluded that the three conventions under scrutiny have not been effectively implemented in Sri Lanka.
A copy of the full report given exclusively to The Sunday Leader had been handed over to the government last month for its observations. The government however by Friday last week said it will not respond to the GSP+ investigation EU experts’ report, but will instead continue to engage on the issues of concern with the European Commission.
The 130 page interim report titled The Implementation Of Certain Human Rights Conventions In Sri Lanka by Francoise Hampson, Leif Sevon and Ramon Wieruszewski has looked at the implementation of the International Covenant on Civil and Political Rights (ICCPR), Convention Against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC) in the country, which are key among the 27 conventions that need to be ratified as a prerequisite to receive the GSP+ facility.
The EU report states that even if the government of Sri Lanka denied non-compliance, the three conventions have not been effectively implemented. It is also stated that the government has mainly denied non-compliance in general terms and mostly without providing sufficient evidence in order to rebut the specific allegations.
The report has dealt with the country’s constitution and has focused attention on unlawful killings, torture, arrests and detention, disappearances, freedom of movement, assembly, expression and religion, access to justice and the right to a fair trial and the rights of the child.
The government’s emergency regulations have been identified by the experts as posing a number of problems while also highlighting the complete or in some instances partial downfall of institutions and legislation set up to protect human rights.
In relation to emergency regulations, it has been stated that the legislation overrides provisions elsewhere in the legislation, including the constitution, as human rights are restricted beyond that which is permitted according to the conventions and sweeping powers are given to the authorities.
“Criminal offences are vaguely defined and the regulations contain provisions that excessively limit or eliminate, the accountability of state agents. Basic fair trial rights are undermined in the emergency regulations,” the report states.
Presumption of innocence undermined
It is also said that emergency laws undermine the right against self-incrimination by permitting the use of confessional evidence and creating a “duty” for persons to answer police questions. Provisions under ER 2005, it states, also reverse the normal burden of proof, undermining the principle of presumption of innocence.
The panel of experts have also assessed that political decisions have resulted in many of the State authorities in the country entrusted with the task of protecting human rights losing their legitimacy and credibility due to the non-application of the 17th Amendment to the Constitution.
The EU experts have stated that the 17th Amendment to the Constitution has been allowed to fall into abeyance by the government notwithstanding the emphasis placed on it by the government in the Status Report.
“That amendment provides for important checks and balances on the executive presidential powers by providing that appointments of independent commissions and persons to senior positions in the public service are subject to recommendations or approvals by the Constitutional Council,” the report states, adding that in the absence of a Constitutional Council the President has appointed commissions and persons to senior positions directly.
Involvement of the Executive
The experts have voiced serious concern over the violation of the 17th Amendment and the involvement of the Executive.
“It has been suggested that many of the institutions have lost much of their independence because of the President’s handling of the Amendment.”
The experts have therefore determined that the non-implementation of the 17th Amendment and several other factors such as the climate of impunity and the absence of an effective witness protection scheme have adversely affected the effective implementation of human rights in Sri Lanka.
“The evidence shows that the police are unable or unwilling to investigate human rights violations. It also indicates that torture in police custody is at least widespread. The absence of a witness protection programme and harassment of witnesses discourages witnesses from appearing and operates as a disincentive to make complaints,” it states.
Critical remarks have been made in relation to the efficiency of police investigations.
The report has made special reference to the killing of 17 aid workers from Action Contre la Faim (ACF) in August 2006 and the lack of impartiality, transparency or willingness to cooperate with outside forensic experts during the police investigation.
Killings had increased
The number of killings had increased due to the absence of effective investigations. In fact, it has been stated that there had been almost no credible police investigations and few arrests or indictments in any of the hundreds of killings, abductions and disappearances over the preceding year and a half.
Minister in the present administration, Vinayagamurthy Muralitharan alias Karuna has also been implicated in the EU report where it sates that the police had not carried out investigations into actions of Karuna’s forces that operated openly throughout the Batticaloa District and the rest of the Eastern Province.
The experts say that while the cases of investigation and prosecution and investigations of violations allegedly committed by the police, armed forces and government officials are thus inadequate and number in single digits and that failing could not be attributed solely to the difficulties caused by the armed conflict in Sri Lanka.
“Above all, the inadequate number of successful prosecutions is a product of lack of political will and an attitude of complacency towards the inadequacy of the legal system,” the report notes.
The country’s judicial system and the former Chief Justice have also been faulted in the EU report. Also, it is stated that while the 17th Amendment to the Constitution permits the appointment of the Attorney General by the President subject to the approval of the Constitutional Council, the President in violation of the 17th Amendment appointed the current Attorney General.
The EU experts have further referred to a report by the International Crisis Group where it had been stated that the Attorney General’s Department has become “increasingly politicised” during President Rajapakse’s tenure. Furthermore, it is stated that the conflict of interest regarding the Attorney General’s Department was one of the reasons for the IIGEP to conclude its work.
“The court system has failed. There are strong indications that it has been politicised. The former Chief Justice of the Supreme Court has misused his position by putting pressure on judges who have acted to his disliking. Judges have been removed by the Judicial Services Commission when they have demonstrated too much independence.”
The judicial system of Sri Lanka has not been capable of meeting the challenges caused by the explosion of political crimes and human rights violations.
The EU expert findings state that the judiciary is, or has been, vulnerable to two forms of political influence: from the government and former Chief Justice.
“Since the operation of the Constitutional Council ceased in 2005, presidential nomination of judges has not been the subject of any additional appraisal and approval process prior to formal appointment. This makes the judiciary vulnerable to executive interference and jeopardises its independence,” the report clearly states.
As for the role played by the former Chief Justice, it is stated that the perception of the judiciary suffering from political influence had arisen due to the excessive influence of the former Chief Justice.
“It is commonly believed that the former Chief Justice used the administration of the case allocation procedure as a tool to sideline senior Supreme Court judges from hearing politically sensitive cases. It has also been suggested that the contempt of court powers of the Supreme Court have been used inappropriately, particularly by the former Chief Justice to stifle criticism from the civil society,” it is observed.
It is also stated that while there were severe restrictions on access to justice, provisions in the emergency regulations have shielded actions against officials from the courts.
The enforcement capacity of the National Human Rights Commission has also been questioned, as the Commission is not seen as having the will or power to address the more serious issues.
The experts have identified unlawful killings as a major problem in Sri Lanka, perpetrated by soldiers, police, paramilitary groups or others, not only during the course of active hostilities. It has been stated that while there was a significant level of unlawful killings, particularly of civilians, during the ceasefire, the level of killings increased following the end of the ceasefire.
Concerns have also been raised on the general lack of investigative ability on the part of the police and other impediments.
However, the EU experts have made a firm statement with regard to unlawful killings. “Unlawful killings perpetrated by soldiers, police and paramilitary groups with ties to the government are a major problem in Sri Lanka,” they have said.
It has been noted that while these types of killings were widespread and included political killings for the purpose of suppressing and deterring the exercise of civil and political rights as well as suspected crimes by the police, the government was also compromised by its association with the Karuna faction, the TMVP.
“The Karuna faction worked openly with the government security forces at checkpoints, carried weapons on the streets and escaped investigation despite many complaints to police and security forces about their involvement in child abductions, torture and killings of civilians.”
Many killings and disappearances of civilians were carried out against those suspected of being informants for or collaborators with the LTTE, particularly around Colombo and Jaffna and had occurred in the high security zones with a heavy military presence, while in Jaffna, many of these violations had occurred during military imposed curfews. Some of the killings according to the report had been carried out by security forces supported by the EPDP that works closely with the government.
Attacks on the media
The EU experts when considering unlawful killings have also addressed attacks on the media.
It states that while numerous journalists have been abducted, attacked, threatened or forced into exile, with the killing of The Sunday Leader Editor, Lasantha Wickrematunge in January 2009, other journalists have fled the country.
“The obligation to investigate any killing, whether committed by a SA/PSA or a third party, is an intrinsic element in the obligation to protect the right to life,” the report states.
The report states the prohibition of torture is not implemented in practice in Sri Lanka. The Prevention of Terrorism Act and the emergency regulations that are not subject to legislative protections have resulted in widespread torture. “While Sri Lanka has an impressive record on passing legislation to criminalise torture and to provide safeguards against torture, in practice such treatment remains widespread.”
International reports indicate continued and well-documented allegations of widespread torture and ill treatment mainly committed by state forces (police and military) particularly in situations of detention.
Torture a routine practice
It is stated that procedural safeguards and checks and balances against torture within the Emergency Regulations either do not apply or are disregarded leading to a situation where torture has become a routine practice and the allegation that all parties involved in the torture have engaged in torture and CIDT.
“There are particularly widespread allegations of torture, CIDT in and near the recent conflict zones. The allegations include claims of sexual assault, including rape.”
The protections as in the legislation appears to be routinely ignored in practice and complaints are investigated neither effectively nor expeditiously.
The report states that the prohibition of torture and CIDT is not implemented in Sri Lanka.
It is also stated that although some of the safeguards attaching to arrest and detention in normal circumstances are recognised in the Sri Lankan legislation, there are certain missing protections.
Arrest and detention
Emphasis with regard to arrest and detention has been paid to detention related to emergency. The powers of detention according to the expert review results in both arbitrary arrests and mass detention and there appears to be no effective possibility of review of lawfulness.
“The prohibition of arbitrary detention is not implemented in Sri Lanka, particularly in relation to detention under emergency powers,” the report states.
Referring to detention in the camps, the experts have stated that while those in the camps are in effect deprived of their liberty, for all intents and purposes, they are interned.
However, they have stated that it was not clear if the people in the IDP camps are detained under the Emergency Regulations and if the government regarded them as being detained.
“If not, that is a novel form of unacknowledged detention. It is not that the detention of a specific individual is denied. It is the fact of the detention itself which would be denied,” it is stated.
The EU report has also taken the government to task on the disappearances that have taken place in the country since 2005 and the failure to carry out effective investigations into them.
People reported missing
More than 1,500 people were reported missing from December 2005 to December 2007.
The report notes that while some of the disappeared are known to have been killed, the others were found in detention, but the majority remain unaccounted for.
It states that Sri Lanka has failed to implement its obligation to prevent enforced disappearances by state agents and other forces for which it is responsible.
“Such forces are implicated in the increase of disappearances between 2005 and 2009. It has also failed to prevent disappearances at the hands of third parties. It has also failed its obligation to carry out effective investigation into alleged disappearances. That result in complete or virtually complete impunity,” it states. As for the freedom of association and assembly, it has been stated that although the law provides for such freedoms to exist, there are restrictions under the emergency legislation.
The experts have stated that while available information does not enable firm conclusions as to whether there has been effective implementation of these rights, the emergency regulations have a negative impact on the practical implementation of the right to assembly.
Freedom of expression
However, the practical implementation of the freedom of expression has been identified as one of the most serious problems in Sri Lanka.
The report states that the legislation, in particular the anti terrorist legislation, imposed limitations on the freedom of expression, which are not compatible with the obligations under the ICCPR.
“The policy of the government and its propaganda against all critics of its policy effectively destroys the freedom of the press. The culture of impunity prevails as far as physical assaults and more serious attacks against journalists are concerned, which de facto seriously limits that freedom,” it has been stated.
As for freedom of movement, the principal problem posed by the general restrictions on it is that they appear to be imposed and enforced in an arbitrary and disproportionate manner.
However, the experts have recognised the legitimate security concerns of the government in relation to the IDP camps, especially due to the screening of IDPs in order to identify LTTE fighters.
However, they have added that the mass internment of the civilian population in the north is both arbitrary and disproportionate.
“In June 2009, the United Nations was more worried about the issue of freedom of movement than living conditions in camps,” the report stated.
Bringing justice for victims of human rights violations has also been pointed out as an area of concern in the country due to the critical shortcomings in the criminal justice system in the country.
According to the EU experts, the biggest problem in this regard is the complete inadequacy of the system of criminal investigation.
An observation made by the experts in the report state, “Whilst this is a problem of long standing duration, it has been aggravated by the fact that the police have increasingly been given a quasi-military role in the insurgency, during which they have become, along with the armed forces, significant perpetrators of violations, rather than investigators.”
The criminal justice system as pointed out by the EU report, is subject to political pressure, lacks effective witness protection and is slow.
“The right to a fair trial is hampered by the harassment of parties and witnesses and by the transfer of trials from one court to another,” the report stated.
Protection against discrimination
The EU experts have said the government seems to have met the requirements with regard to Freedom of Religion and in relation to child rights, the government has taken steps to address the issue of child recruitment that posed a serious problem between 2005 and 2008, which was in violation of the state obligations under international law.
It has also been stated that protection against any form of discrimination is a very sensitive issue and there was no reason to question the legislative framework of those rights.
However, the report states that the present situation has led to the conclusion that rights of persons belonging to national minorities, in particular the Tamil population from the north and east of the country have not been protected effectively.
“Those categories of people have been subjected to various forms of discrimination contrary to the country obligations under the ICCPR,” it is stated.
One of the objectives of the EU report is to assess whether the national legislation of Sri Lanka corresponds to the obligations under the three conventions, whether the obligations under the conventions are actually adequately and effectively applied in practice and whether the institutions set up in Sri Lanka to protect human rights actually adequately and effectively fulfil their task.
Protection of human rights
The other is to assess how the obligations imposed by the three conventions are met in practice.
The final objective is to look into the structure and functioning of the authorities for the protection of human rights, including providing a remedy for any violation.
According to Article 19(2), the GSP+ may be temporarily withdrawn in respect of all or certain products, in particular if the national legislation no longer incorporates the conventions or if that legislation is not effectively implemented.
Be that as it may, except for the appointment of a four member ministerial committee to study the issue and commence a dialogue with the EU officials, the government has not made any response to the comments and concerns raised in the EU report.