Photo courtesy of Kumanan
President Anura Kumara Dissanayake and his NPP government have inherited a daunting list of human rights problems to address.
In his election manifesto, President Dissanayake pledged to repeal the Prevention of Terrorism Act (PTA), remove abusive provisions of the Online Safety Act (OSA), establish an independent Directorate of Public Prosecutions separate from the Attorney General’s office, aggressively combat corruption and revise economic policies to promote equity. He also announced renewed investigations into the 2019 Easter Sunday bombings and other emblematic crimes.
But the government also needs to prioritise addressing the entrenched impunity surrounding decades of grave violations, corruption and financial mismanagement and abusive security force practices severely restricting the rights of Tamils and Muslims.
Previous governments have pledged to end human rights violations and address past crimes but they have failed to act, instead pursuing repressive policies while shielding those responsible for past violations and denying justice to victims. Governments have harassed and intimidated thousands of families of victims of enforced disappearances while human rights defenders and journalists have been subject to intrusive government surveillance, threats and restrictions.
President Dissanayake has to act on the evidence on enforced disappearances collected by previous commissions of inquiry, reform or replace the Office of Missing Persons and ensure instead a body that has the trust of victims’ families and the technical capacity to identify remains discovered in mass graves.
There must be a full moratorium on the use of the PTA and remaining prisoners who were convicted on the basis of confessions obtained under torture must be released. There must be fair and thorough investigations of grave crimes including the 2019 Easter Sunday bombings as well as emblematic cases that were partially investigated between 2015-19 before those investigations were dropped under President Gotabaya Rajapaksa. Police, military and intelligence agencies must end the intimidation and arbitrary surveillance of human rights defenders and civil society activists.
To protect minority rights, the government must direct state agencies to end the practice of encroaching upon or denying access to minority religious sites such as Hindu temples. It should also adopt reforms to the Muslim Marriage and Divorce Act (MMDA) approved by a previous cabinet in 2021. It should repeal laws that are used to criminalise same-sex relationships and to target transgender people and back a longstanding demand by the women’s rights movement to legalise abortion.
As part of its series on Assessing the Key Issues Facing the NPP Government, Groundviews spoke to Ambika Satkunanathan, a human rights activist who works on issues related to counter-terrorism law and policy, militarisation, drug control and treatment, penal policy and transitional justice on why contentious laws have not been repealed, what more the international community can do and the relevance of a Truth Commission.
Despite its election promises, the government hasn’t made any concrete moves to repeal the PTA or OSA. Why do you think this is?
I can’t speculate on the reasons the government might not have done this. But the government did promise that it would repeal both laws. On the OSA, the government’s responses to activists, civil society and journalists demanding that it be repealed is concerning. The government’s response has been that it will amend it. They say we need to have the OSA because we need to protect the rights of women and children who are being adversely affected, particularly on social media. Why would you bother amending such a human rights deficient law that barely has any provisions to protect women and children instead of repealing it and enacting a new law if required? Where the PTA is concerned, recently a young man who posted pro-Palestinian stickers condemning the violence in Gaza has been arrested under the Act. The police responded saying that they had not arrested him merely for posting stickers but that there were other elements to it as well. We do not know what these other aspects are or why they arrested this person. The government has said that until it drafts a new law that the PTA will continue to be in effect. It has not placed a moratorium on the law. The PTA as it exists now does not even define terrorism according to the international definitional framework. The only thing that the PTA does is give broad powers to the police. It has a lengthy period of administrative detention, which means that the detention is not under judicial oversight. If the government is saying that it needs the law until they draft a new law, what they are saying is that we want the police to have these broad powers that we have seen since the enactment of the PTA, powers that have been abused and used to commit gross human rights violations. The party in power has spoken against the PTA and the OSA but it has taken no substantive action after being elected. It makes people distrust them. People start thinking the government wants excessive and abusive powers, and that undermines public trust. If it wants to maintain public trust and be seen as a government that functions with integrity and implements its promises, it needs to repeal these laws. It has a majority in parliament that allows it to pass laws so there’s no valid excuse to not repeal the laws.
There has been no progress on emblematic cases. What should be done to keep the justice process going?
Where the emblematic cases are concerned, we cannot entirely blame the government because it is the criminal justice system. There are many elements to the criminal justice system. We have the police, the Attorney General’s Department and the courts. The reason that the emblematic cases have not progressed is due to one or many of these entities and the way they function. The Attorney General’s Department, for instance, is not independent because it acts as public prosecutor as well as an advisor to the government. We need to bring about reform to ensure that the office of the public prosecutor is separate and independent. Therefore we can’t entirely fault the government because if we do we are saying we want them to interfere in judicial processes. But it must send a clear message to all the entities that are part of the criminal justice system that they need to take proper action. The Ministry of Justice could find out why and where the bottlenecks are in each of these cases and then try to understand whether it’s systemic, structural, political or incompetence and take action accordingly. The second is to undertake structural, systemic reforms of the institutions that constitute the criminal justice system. Reform is not easy; it is not short term because these are problems that are deeply entrenched in these systems and have become normalised in common practice.
What more do you think the international community should be doing to push the government to accept accountability and justice?
The international community, regrettably, does not seem to be concerned about international human rights. I say this based on many factors. One is that we have the International Court of Justice’s decision and orders related to Gaza, which have been disregarded by many countries. Many countries are cutting down on foreign aid, particularly assistance protection of human rights, women’s rights and LGBTIQ rights. On a global level, there is a callous disregard for human rights. So when these countries advocate for actions to be taken by the Sri Lankan government, they will be accused of hypocrisy. Their advocacy, actions and rhetoric loses value. You see this at the Human Rights Council. In September, the resolution on Sri Lanka comes to an end. Is it going to be renewed? Will there be a new resolution? A lot of advocacy has to be done if there is a new resolution. We do not know whether there will be support for it. There will definitely be countries that are against it who will accuse the countries who are for the resolution of hypocrisy. The international community needs to respect international human rights law in general. It needs to walk the talk, which means it needs to provide resources to civil society organisations working on these issues that are under threat. Universal jurisdiction is needed because there is a symbolic value to the sanctions. People who have been sanctioned will feel that it’s a loss of face. They will be angry that they cannot go to these countries and their assets there will be frozen. But where broader accountability issues are concerned, we have no chance of going to the International Criminal Court. I don’t think that we will see special courts like we saw in the case of Yugoslavia, Rwanda or Cambodia. So universal jurisdiction is the only way. That means that countries where persons who are alleged to have committed gross human rights violations reside have laws that allow them to prosecute these people. We have seen people who committed violations in Syria and Iraq being prosecuted and convicted in Sweden and Germany. This is the only way but it is not easy. It requires a lot of work and evidence gathering.
Despite the government’s promise of reform, the MMDA also seems to be stuck. Why do you think the government is not going ahead with these reforms?
With reforms, particularly related to the rights of women and when it’s linked to community law, governments have been reluctant to go ahead because those communities, or the men, have power. They have relationships with people in government. Governments do not want to suffer adverse electoral impacts so they make promises they don’t deliver on. It is probably the government’s fear that there will be opposition from the Muslim community. But Muslim women have for years demanded change to the MMDA to protect their rights so we cannot say that this demand is not coming from the community or that it is coming from external actors. No, it is coming from the Muslim women who have experienced discrimination and human rights violations due to the law as it exists now. It is they who have demanded the change. So I would say it is the fear of the government – it doesn’t want to deal with the men in the Muslim community who are against reform and probably feels that it will have an adverse electoral impact. Particularly since local government elections are coming, it’s certainly not going to be talking about this anytime soon.
What do you think that civil society as a whole could be doing to make sure the government sticks to what it says it’s going to do?
Civil society isn’t a monolith because we have urban groups, groups in the provinces, large national organisations and community based organisations. There is also power inequity within civil society as well as tensions. Civil society needs to realise this and do something to address it. Whenever we’ve had more progressive governments, we found that civil society in some way becomes part of government, of their advisory groups or their kitchen cabinets, which means independence and objectivity are lost. If the government does not deliver, civil society also is tainted by that and people will say, you were part of the government. You didn’t do anything. So it is important for civil society to ensure that is keeps those boundaries. We are civil society. We should engage with the government. We should go and meet MPs and ministers. We should write to them. We should advocate. But that’s different to being part of a close group because then are you civil society or are you government? This is a mistake that civil society made during yahapalanaya when it did not criticise the government when it was required. Civil society did not hold the government to account, which is also what led to a fractious relationship between Colombo-based organisations and those in the north and the east, who felt that where transitional justice issues were concerned, Colombo-based organisations were not being vocal or holding the government to account. Civil society does need to hold the government to account. It needs to continue to document violations but it also needs to engage with the government. We need to engage and to criticise. The most important thing is that the government should be open to this. We are still in the honeymoon period but the government should not feel that civil society can’t ask questions or that there are reprisals or that it tries to shut down civic space. One of the most disappointing areas of government inaction is where civic space is concerned because we have the NGO Secretariat that issues instructions to civil society that have no legal weight. They’re not laws, regulations or circulars and the NGO Secretariat doesn’t have the legal authority to issue those directions. It is asking all NGOs to register with it and the application will be sent to the Ministry of Defence for vetting. If the Ministry of Defence finds a problem that institution will not be registered. What criteria would the Ministry of Defence have? Will the process be transparent? We still see NGOs being summoned or being questioned. We do need the government to take positive action.
