In the statement made at the 34th session of the United Nations Human Rights Council, Sri Lankan Foreign Minister Mangala Samaraweera made it clear that his government needed more time to fully implement the resolution adopted in October, 2015.
Samaraweera revealed that the draft legislation on the Truth-Seeking Commission would be presented to the Cabinet of Ministers within the next two months.
The Foreign Minister reiterated that the government was committed to bring justice to the victims of human rights violations.
He added that the Constitution drafting process was essential for the government not only for democratisation, but also for ensuring non-recurrence of conflict.
Samaraweera’s statement came amid heavy pressure mounted by parties on the member nations of the UNHRC urging not to give Sri Lanka more time to implement its accountability mechanism on its own.
Sampanthan’s position
Eight TNA MPs wrote to the UN Human Rights Council (UNHRC) chief requesting him not to give more time to the Sri Lankan Government to address the accountability issue.
The TNA in the letter said that the UNHRC had already given the government ample time to address the accountability issue and has added that giving more time will set a bad precedent.
The letter was signed by TNA Parliamentarians S. Sritharan, S. Yogeswaran, C. Nirmalan, S. Adaikalanadan, K. Kodishwaram, S. Siddharathan, S. Viyalendran and S. Anandan.
However, TNA Leader R. Sampanthan, Parliamentarian M. A. Sumanthiran and six other MPs had not signed the letter. They are of the belief that the UNHRC should grant more time to the Sri Lankan government only on a condition that it would be carried out with international monitoring.
The Sri Lankan government, on the other hand, is finding it hard to set up a hybrid court to prosecute alleged war crimes during the final phase of war.
Hybrid court - not politically feasible
Prime Minister Ranil Wickremesinghe, addressing the ceremonial inauguration of “National Law Week 2017” at the auditorium of the Bar Association of Sri Lanka (BASL) on Friday, ruled out the possibility of “a hybrid court” saying it was not politically feasible.
Instead of a hybrid court, he proposed a ‘Truth and Reconciliation Commission’ as the best option to deal with post war issues of the country. Both proposals - the setting up of a hybrid court and a Truth and Reconciliation Commission - have been presented by the UN Human Rights Chief Zeid Al Hussein as essential parts of Sri Lanka’s post-war accountability and reconciliation mechanisms.
Adding that the setting up of a hybrid court may require a referendum, the Prime Minister said, he raised this point with the UN Human Rights High Commissioner during the latter’s recent visit to Sri Lanka.
“Can you actually establish a hybrid supreme court? If you bring in an Amendment for that purpose, is the two thirds majority of Parliament sufficient? What if the court decides that it requires a referendum?” the Prime Minister queried, adding that the independence of judiciary was no longer an issue. “The European Union (EU) itself knows the dangers of a referendum,” Wickremesinghe said, referring to the much talked-about EU referendum which paved the way for Brexit.
In addition to the hybird court, the Sri Lankan government also had to deal with the shortcomings highlighted in UN Special Rapportuer Juan Mendez’s report.
SL responds to Juan Mendez report
The report, which came out last month, underscored issues such as, Sri Lanka’s failure to revoke the Prevention of Terrorism Act, issues relating to Police torture and shortcomings on the part of the justice and law enforcement mechanism.
Sri Lanka’s response to the UN Special Rapportuer’s report came when Sri Lanka’s Permanent Representative to the UN, Ravinatha Aryasinha presented his statement during the interactive dialogue.
Aryasinha said, “On the specific issue of the Prevention of Terrorism Act, the draft policy and legislative framework for the Counter terrorism Act was approved by the Cabinet in January 2017.
It seeks to effectively and comprehensively respond to contemporary manifestations and threats of terrorism, consistent with principles of democracy, good governance and the rule of law.
The role and contributions of the UN Counter Terrorism Executive Directorate (CTED, OHCHR and UNODC were useful in this regard and we appreciate their contributions.
The Government expects to continue its collaboration on technical assistance with the CTED as the work on the draft counter terrorism legislation progresses.
The issue of arrest of suspects by the TID - those arrested are produced before the JMO within 24 hours and a report is obtained.
Similarly, the Human Rights Commission of Sri Lanka, the ICRC Sri Lanka, and the Next of Kin are informed of the custody.
Prison overcrowding is an issue that has seized our attention very much in recent times, as work is being carried out to introduce a new Prison Administration Act. Further, a new circular that was issued encourages sending more prisoners to the Open Prison Camp to reduce overcrowding. At present, in line with the relevant 2007 Government Gazette, three detention centres are being maintained, namely, in Colombo, Boossa, and Vavuniya.
A Policy Framework and National Plan of Action to address Sexual and Gender–based Violence (NPoA) was officially launched in November 2016 to provide a holistic policy guideline and to comprehensively address the issue of violence against women through a three-pronged approach of prevention, intervention and policy advocacy.
Consistent with the HRC Resolution 30/1, the Government continues to make progress on the reconciliation mechanisms. The Consultation Task Force on Reconciliation Mechanisms handed over its report to the Government in January, and this report is presently being studied with respect to designing mechanisms for truth-seeking, justice, reparation and other steps and processes related to reconciliation.
The Secretariat for Coordinating Reconciliation Mechanisms (SCRM) is consulting experts and is working on obtaining the required training and capacity building for all the relevant mechanisms.
In all these processes, the Government works closely and in consultation with the United Nations system and the OHCHR, as well as other international organizations and bilateral partners.” UNHRC Chief report on Sri Lanka Posing a fresh challenge to Sri Lanka, UN Human Rights Chief Zeid Ra’ad Al Hussein said, the Sri Lankan government should adopt a legislation which will establish a hybrid court with international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations including war crimes.
In the Report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka, dated February 10, 2017, he urged the Sri Lankan government to give the highest priority to the restitution of all private land that has been occupied by the military and to end the military involvement in commercial and other civilian activities. The report was made public on Friday.
Salient points of the UN Human Rights Commissioner’s report on Sri Lanka are as follows:
(a) Embrace the report of the Consultation Task Force on Reconciliation Mechanisms;
(b) Present a comprehensive strategy on transitional justice, with a time-bound plan to implement the commitments welcomed by the Human Rights Council in its Resolution 30/1 and the recommendations contained in the present and previous reports of the High Commissioner to the Council; and as part of this strategy or separately, set out a clear plan of action, implement key recommendations of United Nations human rights mechanisms;
(c) Formulate and promptly launch a communications campaign to inform the public about the objectives, time frame and rationale of the reconciliation agenda, identifying ownership of and commitment to the process;
(d) Continue its engagement with the public, victims’ groups, civil society organizations and other stakeholders throughout the process of designing and establishing transitional justice mechanisms;
(e) Invite OHCHR to establish a full-fledged country presence to monitor the situation of human rights, to advise on the implementation of the recommendations made by the High Commissioner and the Human Rights Council in its resolutions, and to provide technical assistance;
(f) Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement in this process, and invite other relevant special procedures and the Special Representatives of the Secretary-General to visit Sri Lanka and advise on relevant draft legislation;
Institutional reforms
The High Commissioner recommends that the Government of Sri Lanka:
(a) Publicly issue unequivocal instructions to all branches of the military, intelligence and police forces that torture, sexual violence and other human rights violations are prohibited and will be investigated and punished, and order all security forces to end immediately all forms of surveillance and harassment of and reprisals against human rights defenders, victims and social actors;
(b) Develop a full-fledged vetting process, respecting due process, in order to remove from office security personnel and other public officials involved in human rights violations; implement other reforms of the security sector in order to strengthen accountability and civilian oversight; and apply stringent screening procedures for units and individuals applying to serve in United Nations peace operations;
(c) Give the highest priority to the restitution of all private land that has been occupied by the military and to ending military involvement in commercial and other civilian activities;
(d) Support the Human Rights Commission, including, by ensuring it receives adequate resources in order to fulfil its mandate to the fullest, including the review of legislation and draft legislation.
Legislation and justice
67. The High Commissioner recommends that the Government of Sri Lanka:
(a) Implement the recommendations of the Special Rapporteur on the independence of judges and lawyers following the country visit in April-May 2016;
(b) Review the Victim and Witness Protection Act with a view to incorporating strong safeguards for the independence and effectiveness of the victim and witness protection program, in accordance with international standards;
(c) Accede to the additional protocols to the Geneva Conventions, and to the Rome Statute of the International Criminal Court; (d) Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and enact modes of criminal liability, in particular command or superior responsibility;
(e) Consider, as part of the constitutional reform process, the inclusion of a transitional clause to facilitate the establishment of transitional justice mechanisms and offer guarantees of redress to all those whose rights have been violated;
(f) Adopt legislation establishing a hybrid court, which should include international judges, defence lawyers, prosecutors and investigators, to investigate allegations of violations and abuses of international human rights law and violations of international humanitarian law, and provide it with the resources necessary to enable it to try those responsible promptly and effectively;
(g) Strengthen the forensic capacity of the police and judiciary and ensure that it is adequately resourced, including for DNA testing, forensic anthropology and archaeology;
(h) Replace the Prevention of Terrorism Act by legislation that adheres to the best international practices;
(i) Review all cases of detainees held under the Prevention of Terrorism Act with the aim of either releasing them or bringing them immediately to trial; establish a moratorium for the use of the Act for new arrests until it is replaced by legislation that adheres to international best practices; and review the cases of those convicted under the Act and are serving long sentences, particularly where convictions were based solely on confessions;
(j) Promptly investigate and prosecute all allegations of torture and other gross human rights violations, and give the highest priority to long-standing emblematic cases so as to regain public confidence in the justice system; and implement fully the recommendations of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and of the Committee against Torture.
Truth/right to know
68. The High Commissioner recommends that the Government of Sri Lanka:
(a) Operationalize the Office of Missing Persons Act and provide the Office of Missing Persons with sufficient resources and technical means; create the conditions necessary for the implementation of its mandate by, inter alia, passing enabling legislation to domesticate the International Convention for the Protection of All Persons from Enforced Disappearances and including the criminalization of enforced disappearances in the Penal Code;
(b) Design, enact and operationalize a truth-seeking mechanism, and provide it with sufficient resources and technical means to carry out its mandate.
5. Reparations
The High Commissioner recommends that the Government of Sri Lanka develop a national reparations policy that takes into account the specific needs of women and children, and strengthen psycho social support for victims. On the sidelines of the UNHRC session, however, the Sri Lankan Foreign Minister held a discussion with the UNHRC Chief on March 1. During the meeting, the Foreign Minister explained the Sri Lankan government’s position on the future course of action with regard to accountability and reconciliation mechanisms.