Photo courtesy of Kumanan Kanapathippillai
Protection and justice for the people of Sri Lanka will be discussed by the United Nations Human Rights Council (UNHRC) at its 49th session from February 28 to April 1. In the run up, the regime has made some conciliatory gestures to try to win international support. Yet grave failings in human rights and democracy continue and calls for a more just and humane stance have at times been responded to negatively, if not ignored.
Stark facts and awkward questions
In March 2021, the UNHRC passed a resolution on promoting reconciliation, accountability and human rights in Sri Lanka, which called for accountability for past abuses including those by both LTTE and government forces as the civil war drew to an end, and for a halt to the downward slide as yet more people were victimised or deprived of rights and freedoms. Militarisation of government functions, erosion of the independence of the judiciary, increasing marginalisation of Tamil and Muslim communities, intimidation of civil society and arbitrary detention were among the problems identified.
Improvements were urged, including “To review the Prevention of Terrorism Act, and to ensure that any legislation on combating terrorism complies fully with the State’s international human rights and humanitarian law obligations.” The notorious PTA, passed in 1979, defined terrorism so vaguely and provided so few safeguards for those suspected, even on the flimsiest grounds, that it had led to numerous abuses. It deepened divisions and mistrust of the police and security forces, making it harder rather than easier to combat terror.
The UN High Commissioner for Human Rights, Michelle Bachelet, was tasked with monitoring the situation, including making a written report at the 49th session, which is rapidly approaching. A discussion on the human rights situation is currently scheduled for March 3.
Over the past year, ongoing violations and centralisation of power as well as economic mismanagement in what was already a challenging situation amidst the pandemic have led to widespread dissatisfaction, even within the Sinhalese Buddhist majority. While a few wealthy and well-connected people have thrived, many – especially those already on low incomes – have suffered deeply. Against this background, European Commission warnings that access to the GSP+ tariff scheme, linked with good governance, might be at risk carried considerable weight because loss of GSP+ status will further affect the economy and fuel discontent. A European Parliament resolution cited the UNHRC resolution and concern over the PTA and its ongoing use, including the arrest of Muslim lawyer Hejaaz Hizbullah, as one of the key issues.
In December 2021, several UN human rights experts drew attention to the need for drastic changes to the PTA. In part of a pre-Geneva flurry of activity in early 2022, the Sri Lankan government announced details of its proposed reform of this damaging law. But these fell far short of what was required to prevent arbitrary detention for long periods of time and torture; under these proposals, in yet more cases, individuals and their families would have their lives wrecked.
The UK’s Minister for South Asia, United Nations and the Commonwealth, Lord Tariq Ahmad, who visited Sri Lanka in January, was positive about the progress made, while calling for further improvements. However Tamils he met in the North and East pointed to ongoing problems, including disappearances of civilians. Several current and former MPs wrote to him with details of worrying cases, while Tamil National Alliance MP and human rights lawyer, M.A. Sumanthiran, accused the government of trying to mislead the international community ahead of the UNHRC session.
Globally, there is considerable scepticism about how far any planned reforms are likely to go. Legal experts in the International Commission of Jurists were less than impressed by the government’s proposals so far. “The Government of Sri Lanka is once again scrambling to do its bare minimum ahead of another UN Human Rights Council session, in an attempt to deflect focus away from its failing human rights record,” said Ian Seiderman, ICJ’s Legal and Policy Director. “The fatally flawed PTA cannot be cured by these disingenuous reform attempts, but must be entirely repealed.” Human Rights Watch likewise called for the PTA to be repealed, providing a detailed analysis of its ongoing misuse.
In an EU-Sri Lanka Joint Commission Joint Press Release in February, the need for genuine change was underlined: “The EU strongly encouraged Sri Lanka to continue cooperation and engagement with the Human Rights Council and its mechanisms. In this context, the EU underlined the importance of independence and effective functioning of the Independent Institutions.” The EU “welcomed the submission by the Government of Sri Lanka of amendments to the Prevention of Terrorism Act (PTA). However, the EU noted that important elements had not been included in the Amendment Bill gazetted. Sri Lanka took note of the views expressed by the EU to take further steps to make the PTA fully compliant with international norms.” Meanwhile “the EU urged Sri Lanka to continue reducing the use of the PTA, and to undertake further practical and administrative steps to release on bail those detained under the PTA without charges.”
So drastic is this law that even when the Attorney General agreed that Hejaaz Hizbullah could be released on bail, this proved difficult to achieve until the Appeal Court stepped in. In a strongly-worded statement as he was released, the Court pointed outthat since the PTA became law, “Four decades have passed, and the PTA has strayed far away from its historical context. The PTA, if in its application and implementation, creates a vicious cycle of abuse, the very purpose of the statute will be defeated… Ultimately, it is up to the Legislature to ensure that the draconian elements of the law combating terrorism are dispensed with per modern day contexts. Until such time, it is the judiciary’s duty to employ existing legal provisions and constitutional powers to interpret the same elements in the interests of justice.”
That such limited concessions to the rights, freedom and dignity of ordinary Sri Lankans are only being unveiled at the last minute, with hints at further measures but no guarantee, does not foster confidence in the government’s intentions. Without more substantial changes, the regime’s representatives will come under heavy pressure at the UNHRC.
Iron fist and velvet glove
Despite the regime’s attempts to project a more favourable image internationally, its underlying authoritarianism, unwillingness to admit its faults and impatience with criticism are sometimes evident. A former Commissioner of the Human Rights Commission of Sri Lanka, Ambika Satkunanathan, spoke on the situation at a hearing of the European Parliament’s sub-committee on human rights in late January. Instead of addressing the issues in a reasonable manner, the Foreign Ministry replied in a way that was defensive and at times aggressive, painting a picture of benevolent rule which few outside the Rajapaksa inner circles would recognise. 161 civil society activists and 47 organisations responded, defending her and the right to speak out.
“We consider the targeting of outspoken members of civil society by a government institution using dangerous insinuations to be a form of intimidation aimed at stifling dissent and freedom of expression. Statements such as this by the Foreign Ministry, we believe, aim to constrain civil society engagement as an independent interlocutor with the international community on democracy and rights issues, standing up for the rights and protection of affected communities and individuals,” they wrote.
They pointed out that “Rather than engage substantively with the issues raised, the Sri Lankan Government instead chose to cast aspersions on an individual with an unimpeachable record of principled research, advocacy and public service for the improvement of human rights in Sri Lanka. The attempt by the Foreign Ministry to draw an analogy between the independent advocacy of a Tamil activist and researcher with the claims of the LTTE is both unwarranted, mischievous and chilling. The insinuation that pointing out the differential impact of government policies, state institutions and their practices on Tamil and Muslim communities is in some way ‘stoking hatred among communities’ and harmful to ‘social harmony’ is also deeply troubling” given the misuse of the law to target critical individuals and minorities.”
Such incidents and the numerous flashpoints in the relationship between a regime hanging on to its own power and those whose social, economic or political rights have been disregarded are reminders of the ruthless, often violent, culture at the top. While even modest measures matter, achieving major change which is likely to continue even after the world’s gaze has moved elsewhere will remain a real challenge.
The 49th UNHRC session offers valuable opportunities, especially if people facing economic and social injustice of various kinds can better understand and work with one another. It is advisable however not to put too much stock on vague promises but rather to seek durable advances.