Apart from the reduction of scale of human rights violations after the signing of the ceasefire agreement between the Sri Lankan government and the LTTE in February 2002, there has been little improvement of human rights situation since the submission of the first periodic report in 1994. Arbitrary arrest and detention, torture, custodial rape, extrajudicial executions, disappearances etc continue to be perpetrated by the security forces with impunity. Only on 7 October 2003, Sri Lankan parliament passed the Grant of Citizenship to Persons of Indian Origin Act to bring an end to over 50 years of systemic and institionalised discrimination. There are only about 2,500 aboriginal Veddas remaining to be Sinhalised after being displaced because of the Gal Oya irrigation project of the 1950s, the Mahaweli project of the late 1970s and the establishment of the Maduru Oya National Park in 1977. The judiciary faces serious crisis of independence. Under the 1979 Prevention of Terrorism Act, the courts function under the executive caprice.

Undoubtedly, Sri Lanka faces formidable armed opposition from the Liberation Tigers of Tamil Eelam [1] (LTTE), which has also been responsible for serious human rights violations. However, the government sought to justify human rights violations in the name of combating the LTTE and preserving territorial integrity of the country. The security forces enjoy virtual impunity. The right wing Sinhalese and the powerful Buddhist clergies have often attempted to sanctify the culture of impunity, sometimes by providing legal aid assistance to the perpetrators of human rights violations. The culture of impunity while dealing with the minority Tamils also had its enduring negative effects on human rights and fundamental freedoms of the Sri Lankans.Impunity remains the single most important factor contributing to continuing human rights violations in the Island.

A few visible measures such as the ratification of a few key international instruments and the establishment of Sri Lankan Human Rights Commission (SLHRC) have failed to improve the overall human rights situation due to the lack of political will of the government to implement international human rights obligations at national level. The government also created administrative and legal obstacles to restrict the enjoyment of fundamental rights guaranteed under the constitution.

On 10 April 2002, Sri Lankan parliament has established a Select Committee of Parliament to review the functioning of the Human Rights Commission and the time constraints in respect of the Constitutional Jurisdiction of the Supreme Court. The Interim Report of the Select Committee has recently been submitted but it provides little substantive information. [2]

National mechanisms:

Although Chapter 3 of the Sri Lankan Constitution provides fundamental rights and freedom, complaints on violations of fundamental rights could strangely be lodged only before the Supreme Court under section 126(1) of Sri Lankan Constitution, that too within 30 days time limit and only by the victim or his/her attorney under section 126(2). Therefore, the opportunity for a poor with no high social status or those living outside of Colombo to obtain relief against the violations of human rights is very limited. There is no opportunity to pursue violations of fundamental rights on behalf of those who are dead or missing.

Sri Lanka is a clear case of having too many National Human Rights Institutions (NHRIs) dealing with inter-related, inter-dependent and indivisible human rights issues. The government established a series of national institutions/commissions sometimes on the same issue such as disappearance. Each new commission of the Sri Lankan government seeks to condone omissions of the previous ones. The government has little political will to give adequate statutory powers and endow them with adequate human or financial resources to fullfil their mandates. Although the Sri Lankan Human Rights Commission requested 32 million rupees for recurrent expenditure and 6 million rupees for capital expenditure during 2001-02, the government sanctioned 23 million rupees for recurrent expenditure and 500,000 rupees for capital expenditure. [3] In 2002, the SLHRC’s budget was further slashed by Rs 9 million. In 2003, the Treasury has allocated only Rs 1.6 million although the SLHRC had requested Rs 40 million ($420,000). [4]

Human rights and emergency:

Although, emergency regulations imposed in May 2000 were allowed to lapse in July 2001, the Prevention of Terrorism Act (PTA) of 1979, which violates many provisions of International Covenant on Civil and Political Rights (ICCPR), is still in force. After the emergency lapsed, the President issued regulations under the PTA providing that “any person who had been remanded ... in terms of any other written law, and has also been connected with or reasonably suspected ... with any unlawful activity within the meaning of the PTA, shall be deemed to have been remanded under the PTA”. In effect, all those who were detained the Emergency Regulations were brought under the PTA. [5] Under the PTA, the opinion of the Attorney General and the Defence Minister on arrest, detention and granting bail is final and cannot be questioned before any court and tribunal. Therefore, the judiciary is subservient to the executive.

The Sri Lankan President issued orders to release 3670 prisoners in the run-up to 2002 and 2003 Independence Day celebrations. [6] Not a single detainee under the PTA was released.

In September 2003, the Attorney General reportedly directed all state counsels appearing in High Courts in the country not to withdraw indictments filed under the Prevention of Terrorism Act any more until they receive further direction in this regard. [7]

There has been considerable public pressure to repeal the PTA. The government has been contemplating repeal of the PTA. However, before such measures are taken, the government sought to bring in the draconian provisions of the PTA through the backdoor under the Prevention of Organised Crimes (POC) Bill, 2003. The government has been seeking to incorporate provisions of an emergency law as a part of the normal criminal justice system. President Chandrika Kumaratunga while commenting on the POC stated, “the proposed legislation seeks to significantly dilute procedural due process and the rights of the accused to a fair trial.” [8]

Right to life:

Notwithstanding the assertion of the Sri Lankan government in its fourth periodic report that only three crimes - the offences of murder, treason and drug trafficking to be determined by judiciary on case-by-case basis – attract death penalty under the Sri Lankan Penal Code, arbitrary deprivation of life by the law enforcement personnel is rampant and perpetrated with impunity. According to All Island Commissions of Inquiry 27,200 persons have disappeared during 1988-90 alone. [9] About 4,000 suspected individual perpetrators were identified out of whom about 500 perpetrators have been indicted. But these have resulted in only very few convictions in the courts. [10] In addition, the security forces are involved in arbitrary deprivation of the right to life through indiscriminate killings and custodial deaths.

Torture:

Torture is rampant in Sri Lanka and a part of administration of justice. It is so widespread that the victims include local Ministers, ex-soldiers, Criminal Investigation Department Officers and not to mention about the minority Tamils. No perpetrators of torture have so far been convicted in a criminal court, despite the reported filing of some cases. [11] It clearly shows that the Act No 22 of 1994 passed by the Sri Lankan parliament embodying the provisions of the International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has failed to eradicate torture. In February 2003, Police headquarters were in the process of investigating over 100 torture cases against policemen including several officers-in-charge of police stations. [12] But past track records evoke little confidence.

Arbitrary arrest and detention:

Article 13(1) of the Sri Lankan Constitution provides that “No person shall be arrested except according to the procedure laid down by the law. Any person arrested shall be informed of the reason of his arrest.” “Procedure laid down by the law” is not due process of law. Parliament is empowered to lay down procedures, which do not meet due process of law. Article 6(1) of the Prevention of Terrorism Act, which provides for arbitrary arrest and detention for indefinite period, is a clear example.

Juvenile justice:

While conscription of child soldiers by the LTTE is condemnable, Sri Lankan government sought to hide its failure in the administration of juvenile justice and maltreatment of the juveniles under the LTTE misdeeds. Sri Lanka reprehensibly sets the minimum age of criminal responsibility at 8 years, [13] an affront to civilized society’s attitude and behaviour towards children.

Independence of judiciary:

Sri Lanka faces serious crisis of independence of judiciary. The judiciary has no independence and is subservient to the Attorney General and the Defence Minister under the PTA of 1979. If this was not enough, Sri Lanka's Chief Justice Sarath Silva heard a case against him and sentenced trade unionist, Michael Anthony Fernando to jail for one year on 6 February 2003. Mr Anthony was further tortured inside the prison. Although, Mr Anthony was released for good behaviour on 17 October 2003, the questions about the lack of independence of judiciary in Sri Lanka remain valid. For the last three years, Sri Lankan government declined to allow the UN Special Rapporteur on Independence of Judges and Lawyers to undertake a mission to Sri Lanka. [14]

Freedom of movement:

The right to freedom of movement is a classic example, which could only be exercised depending on the success of the peace process between the LTTE and the Sri Lankan government. Although the Supreme Court in early September 2002 declared that the military pass system, which was in force in Vavuniya, violated the provisions of the Constitution relating to freedom of movement, it remains to be seen whether the government respects it if the peace process unfortunately fails. [15]  

Freedom of expression:

Freedom of speech and expressions are often suppressed during emergencies. Reporters, particularly those who cover human rights issues, corruption, or police misconduct, continue to face some harassment, threats, and violent attacks at the hands of the police, security forces, government supporters and the LTTE. Although, the government abolished Sections 479 to 482 of the Penal Code regarding criminal defamation in June 2002, the amendments to the Parliamentary Privileges Act, the repealing of the Public Performance Act to be replaced by a Film Review Board, amendments to the Prevention of Terrorism Act and the law to enable the establishment of a Media Council are still pending.

Freedom of association and assembly:

While the freedom of association and assembly is generally recognized in Sri Lanka, its exercise is restricted in the Northern and Eastern parts of Sri Lanka. The security forces do not exercise necessary restraints and use disproportionate force including firearms in violation of the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Indian origin Tamils:

Only on 7 October 2003, Sri Lankan parliament passed the Grant of Citizenship to Persons of Indian Origin Act to bring an end to over 50 years of systemic and institutionalised discrimination. The United States State Department reported that at the end of 2002, there were approximately 75,000 of these persons who do not qualify for either Indian or Sri Lankan citizenship and face discrimination. [16] While Tamils in general have been adversely affected by Sri Lanka’s internal strife, the discrimination face by Indian origin Tamils is more severe than that of the Ceylon Tamils and other Sri Lankan minority groups. Without national identity cards, they are vulnerable to arrest by the security forces, in addition to being denied access to university education, employment, health care etc. They are effectively denied the vehicle to be considered as persons before the law because of the denial of citizenship.

Internally Displaced Persons:

In May 2003, an IDP survey conducted by UNHCR and the Ministry of Rehabilitation, Resettlement and Refugees (MRRR) during 2002 showed that close to 150,000 IDP families or 92 per cent of the total displaced population required some kind of assistance to achieve durable solutions. Two large groups, some 125,000 non-Tamils from the LTTE-held areas and some 50,000 Tamils from government “High Security Zones” (HSZ) in particular are in need of better security arrangements before returning. Displaced women, especially female-headed households, are among the most vulnerable upon return.

Indigenous Vedda peoples:

One of the oldest communities, believed to be 28,500 years old, there are only 2,500 aboriginal Veddas remaining to be Sinhalised. They have been displaced from their lands after construction of Gal Oya irrigation project of the 1950s, the Mahaweli project of the late 1970s and the establishment of the Maduru Oya National Park in 1977. Today, no one but only the tourists could enter the Maduru Oya National Park without a permit from the Department of Wildlife. On 7 August 1997, President Chandrika Kumaratunga issued a proclamation stating that the Veddas would be allowed to continue their traditional way of life. But, in the absence of precise legislation or government order, the Veddas are still being targeted for continuing their traditional ways of life. [17]

Conclusion and recommendations:

The examination of the fourth periodic report of Sri Lanka after a gap of nearly one decade is a rare opportunity for the NGOs and the United Nations Human Rights Committee to make comprehensive recommendations to overhaul the human rights mechanisms of Sri Lanka. By awarding impunity through the adoption of the Indemnity Act No. 20 of 20 May 1982 and other procedural and legal obstacles, the Sri Lankan government has virtually turned its security forces into the biggest “gang of criminals”. Not surprisingly despite making torture a criminal offence in 1994, not a single torturer has so far been prosecuted even though victims of torture include local government Ministers, police personnel and ex-soldiers belonging to mainstream Sinhalese community.

Asian Centre for Human Rights (ACHR) requests the United Nations Human Rights Committee to consider the following suggestions for inclusion in its Concluding Observations and Recommendations:

-         Amend Article 126 of the Constitution of Sri Lanka to enable the High Court and the Magistrate’s courts to deal with the complaints on violations of fundamental rights, to repeal 30 days time bar to file petitions and to enable filing of petitions on behalf of those who might have died or disappeared; and if necessary, consider developing Technical Cooperation Projects with the Office of the United Nations High Commissioner for Human Rights to train the High Court and Magistrate Court judges for dealing with petitions on the violations of fundamental rights;

-         Provide adequate powers and resources to the NHRC;

-         Repeal the Prevention of Terrorism Act; and review each and every case of the PTA detainees through a judicial board within a specific time frame and consistent with international standards on due process of law and fair trial and Sri Lanka’s obligations under international law;

-         No provisions of Emergency Regulations and Prevention of Terrorism Act be incorporated under the Prevention of Organised Crimes (POC) Bill, 2003 and that the proposed POC Bill, if adopted, must comply Sri Lanka’s obligations under international law;

-         Ratify the Second Optional Protocol to the ICCRP and abolish death penalty;

-         Establish special courts for prosecution of all those who have been indicted for disappearances;

-         Review Convention against Torture Act No. 22 of 1994 and other relevant laws in order to ensure complete compliance with the Convention Against Torture and Article 7 of the ICCPR, in particular in respect of: (a) the definition of torture; (b) acts that amount to torture; and (c) extradition, return and expulsion;

-         Ensure independence of judiciary by ensuring that decision of the judiciary is final on arrest, detention, trial and conviction even under emergency rules and the PTA and extend invitation to the United Nations Special Rapporteur on Independence of Judges and Lawyers to visit the country;

-         Amend the Parliamentary Privileges Act, repeal the Public Performance Act and amend the PTA to ensure the freedom of expression;

-         Immediately implement the Grant of Citizenship to Persons of Indian Origin Act, 2003; and

-         Recognise the land rights of the indigenous Veddas and ratify the ILO Convention No 169 on Indigenous and Tribal Peoples in Independent Countries.