In Dialogue with Sri Lanka, Experts of the Human Rights Committee Commend Settlement of Internally Displaced Persons, Raise Issues Concerning Constitutional Reform and Impunity for Military Officers’ Alleged Human Rights Violations

The Human Rights Committee this morning concluded its consideration of the sixth periodic report of Sri Lanka on how it implements the provisions of the International Covenant on Civil and Political Rights, with Committee Experts commending actions taken to resettle internally displaced persons, and raising issues concerning the effectiveness of constitutional reform and impunity for military officers who had allegedly committed or overseen human rights violations.

A Committee Expert noted progress made in settling internally displaced persons.  They welcomed that 92 per cent of the private land held by the military had been released to legitimate civilian owners.

Another Expert said constitutional reform through the 20th amendment in 2020 undermined the independence of the judiciary and gave the President unfettered control over the appointment of senior judges, members of the Human Rights Commission of Sri Lanka, and other entities responsible for protecting rights. Since then, the 21st amendment had been adopted in 2022 to re-establish the Constitutional Council and reinstate the former appointment procedure for such positions.  How would the State ensure that future constitutional amendments protected of the independence of the judiciary and of other independent human rights institutions?

One Committee Expert said Staff Sergeant Sunil Rathnayake, who was convicted of killing eight Tamil villagers in 2000, was released by presidential pardon in 2020.  The overreach of executive power was of great concern and fostered impunity for perpetrators of grave offenses.  What measures were in place to oversee presidential pardons?  How would justice for victims of human rights violations be ensured?  The promotion of several military officers to senior command positions despite serious allegations of involvement of troops under their command in gross violations of international human rights law was concerning.  The State party had even devoted a section of its report justifying the appointment to Chief of Staff of Major General Shavendra Silva, the subject of numerous allegations of human rights violations.

On internally displaced persons, the delegation said a special unit had been established. 2,324 internally displaced persons were currently housed in welfare centres and 13.3 acres of State land were allocated to those families.  The President had appointed a committee to classify land as forest land.  If security forces wanted to maintain land, a mechanism allowed them to lease it from the owners.
Himalee Arunatilaka, Permanent Representative of Sri Lanka to the United Nations in Geneva and head of the delegation, reported that in October 2022 the Parliament of Sri Lanka passed the 21st Amendment to the Constitution, further strengthening democratic governance, independent oversight of key institutions, the composition of the Constitutional Council and Independent Commissions.  The 21st amendment stipulated that it was the duty of the Constitutional Council to recommend commission members to the President.  Recommendations had to consider gender balance.

The delegation said the Government rejected unsubstantiated accusations against Sri Lankan military officials.  No factual or proven allegations of human rights violations existed against Major General Shavendra Silva.  Those appointed to Government office were qualified based on experience and expertise.  Presidential pardons could be subject to judicial review and some cases were underway in this regard.

In concluding remarks, Ms. Arunatilaka said that since its sixth periodic report, many developments had taken place within Sri Lanka including on gender equality, reconciliation and the adopted 21st amendment to the Constitution.  There were still constraints and issues that needed to be addressed, as in all countries, to ensure civil and political rights for all people in Sri Lanka.  She reiterated the Government’s commitment to protecting the human rights for all the people of Sri Lanka.

Tania María Abdo Rocholl, Committee Chairperson, in concluding remarks, said the meetings were an important space to address issues including constitutional reform, accountability for serious human rights violations, the independence of the judiciary, internally displaced persons, national religious hatred, and the right to peaceful assembly, amongst others.  The Committee sought better cooperation with the Government of Sri Lanka to better implement the Covenant.

The delegation of Sri Lanka was made up of representatives of the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry of Women, The Ministry of Health, the Ministry of Public Security, the Department of Prisons, the Office on Missing Persons, the Office for Reparations, the Office for National Unity and Reconciliation,  National Dangerous Drugs Control Board, Bureau of the Commissioner General of Rehabilitation; and the Permanent Mission of the Sri Lanka to the United Nations Office at Geneva.

The Human Rights Committee’s one hundred and thirty-seventh session is being held from 27 February to 24 March.  All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.  Meeting summary releases can be found here.  The webcast of the Committee’s public meetings can be accessed via the UN Web TV webpage.

The Committee will next meet in public at 3 p.m., Thursday 9 March to begin its consideration of the fourth periodic report of Panama ( CPR/C/PAN/4).

Report

The Committee has before it the sixth periodic report of Sri Lanka (CCPR/C/PER/6).

Presentation of the Report

HIMALEE ARUNATILAKA, Permanent Representative of Sri Lanka to the United Nations in Geneva and head of the delegation, said that respecting, protecting and upholding human rights for all citizens was of the greatest importance.  Sri Lanka had continued to engage with the United Nations and its human rights mechanisms despite recent social, political and economic challenges.  2023 would be a year of socio-economic stabilisation and recovery after last year’s extremely challenging period, in which the main priority was to restore economic recovery and re-establish law and order.  The Government was focused on addressing underlying economic issues, including through talks with the International Monetary Fund.  Targeted economic measures helped the most vulnerable populations.  While Sri Lanka was able to curtail the spread of COVID-19 through an 82 per cent successful vaccination campaign, the impacts on the economy and the right to development were concerning.

In October 2022 the Parliament of Sri Lanka passed the 21st Amendment to the Constitution, further strengthening democratic governance, independent oversight of key institutions, the composition of the Constitutional Council and Independent Commissions.  The Constitutional Council would include members of civil society and had put out a call for applications.  The Regulation of Election Expenditure Act, which came into force in January 2023, regulated and monitored spending by recognised political parties, independent groups and candidates at all elections to increase transparency in the electoral process.  Amendments to the Prevention of Terrorism Act were adopted by Parliament in March 2022 to better balance national security concerns and international standards through the establishment of a Cabinet Subcommittee that would monitor legislation. 

Sri Lanka was committed to reconciliation through independent, domestic mechanisms.  The President convened an All-Party Conference between 2022 and 2023.  A Cabinet Sub-Committee on Reconciliation was appointed to speed up northern development through addressing northern-province specific issues and national unity.  A truth-seeking mechanism was being discussed.  The Office for Overseas Sri Lankan Affairs had also been established.  The Presidential Commission of Inquiry for “Appraisal of the Findings of Previous Commissions and Committees on Human Rights and the Way Forward” presented its first interim report in 2021, which had resulted in substantial legislative amendments and the release of detainees.

The Office on Missing Persons had conducted panels of preliminary inquiries as part of its verification process leading up to in-depth investigations.  More than 85 per cent of complainants met with the panels and their testimonials were recorded.  The National Reparations Policy and Guidelines formulated by the Office for Reparations was approved by the Cabinet in 2021 and tabled in Parliament in February 2022.  In 2022, 405.2 million Sri Lankan rupees were disbursed by the Office, covering 2,402 cases.

The Office for National Unity and Reconciliation provided over one million persons with livelihood assistance and restored basic infrastructure facilities.  Finally, 92 per cent of private land held by military for security purposes in the north and the east had been released to legitimate owners and 100 acres of land had been handed over to the Government Agent of Jaffna in February 2023.

Questions and Statements by Committee Experts

TANIA MARÍA ABDO ROCHOLL, Committee Chairperson, noted that it was International Women’s Day.  Issues affecting women worldwide included the wage gap, unequal land ownership, female genital mutilation, forced marriage and sexual exploitation.  The day was an occasion for those in a position to do so to renew their commitment to gender equality.  She greeted women from all over the world and welcomed the high representation of women in the Sri Lankan delegation.

A Committee Expert noted that Sri Lanka was sometimes unable to fulfil its human rights obligations during the reporting period.  The ensuing discussion would be an opportunity to better understand the current situation and the way forward.  The Expert inquired about the constitutional reform process.  2016 reforms seemed to have not produced any concrete result and it was unclear whether initiatives for reform started in 2020 had yielded results either.  The current President had promised constitutional reform in 2022 but both the outcome and concrete proposals remained unclear.  What was the status of the Constitutional reform process and what specific measures were being taken by the State party to come up with a final text of a new Constitution?  Was there a concrete timeline for the process?  What proposals had been made to bring reforms in line with the Covenant and its first Optional Protocol?  What other significant developments in the legal and institutional framework on human rights had taken place since the adoption of the previous concluding observations?  Were there examples of cases in which the provisions of the Covenant had been referred to by national courts and other law-applying institutions?

Constitutional reform through the 20th amendment in 2020 undermined the independence of the judiciary and gave the President unfettered control over the appointment of senior judges, members of the Human Rights Commission of Sri Lanka, and other entities responsible for protecting rights under the Covenant. Since then, the 21st amendment had been adopted in 2022 to limit the power of the Executive, re-establish the Constitutional Council and reinstate the former appointment procedure for such positions.  Could the State party clarify what measures it could take to ensure that any future constitutional amendment would protect of the independence of the judiciary and of other independent human rights institutions?  What concrete differences did the 21st amendment introduce to ensure the independence of the Constitutional Council from the Executive?  How specifically was the amendment being implemented?

The report stated that work was underway to decriminalise discrimination on grounds of sexual orientation through constitutional reform.  Was there any progress on this issue?  Would reform be explicit on non-discrimination on grounds of sexual orientation or gender identity?  The Supreme Court had issued a decision that that consensual sex between adults should not be policed by the State.  However, such offences were still part of criminal law and the lesbian, gay, bisexual, transgender and intersex community had still been targeted by police, reportedly.  Was the State party considering repealing related legislation in the penal code criminalizing the community?  Further reports of discrimination and targeted harassment, including workplace bullying, arbitrary arrests and forced anal exams in attempts to obtain evidence to prove same-sex conducts, were concerning.  What measures were taken to address these issues?

Another Expert asked if the State party was considering, in the preparation of a new Constitution, setting up a Constitutional Court to decide on constitutional issues, which would allow for a greater depth and specialisation in the analysis of such issues?

The Committee had expressed concern that that State party had failed to fulfil its obligations under the Optional Protocol.  In the period from March 2006 to January 2016, the State party had not responded to several petitions submitted under the Optional Protocol.  The Optional Protocol had not been explicitly ratified by Parliament and was therefore not legally binding. 

No response had been received on Views adopted in 2004 on issues including the right to a fair trial, enforced disappearances, arbitrary arrest and the use of the death penalty after an unfair trial.  How would the State party ensure the full implementation of such Views and provide the respective authors with effective remedies and full reparation for their grievances?

The Committee welcomed the State party’s adoption of the Prevention of Domestic Violence Act, but reports of domestic violence, often with impunity, were concerning.  Further, allegations of sexual violence against women in the context of detention and resettlement were also of concern.  What were the main results of the National Action Plan on Gender Based Violence?  Was there a centralised mechanism to collect disaggregated data on sexual and gender-based violence?  Has any development on criminalisation of marital rape occurred?  What measures were adopted to ensure the effective and expeditious investigation, prosecution and sanctioning of perpetrators of offences of domestic violence, rape and other forms of sexual violence, such as sexual bribery?  Why were there were extreme delays in the investigation and adjudication of such cases, arbitrary outcomes and particularly very low conviction rates?  Many women left Sri Lanka on visas with promises of jobs and were sold into the sex trade.  In Oman, 58 Sri Lankan women were reported to be victims of sex trafficking and other abuses.  Could the delegation address this?

Another Committee Expert called on the delegation to address the gender bias contained in Kandyan and Muslim laws in relation to inheritance immediately. Further the slow progress in bringing the Muslim Marriage and Divorce Act of 1951 in line with the Covenant was concerning.  Women’s representation in parliament was still low, at around only five per cent, and had even decreased.  Further reports that women candidates had been subjected to gender-based harassment and verbal attacks in the context of the last parliamentary elections were disturbing.  How would the Election Commission address slander and harmful stereotypes in the media?

Another Committee Expert said that three states of emergency had been invoked since April 2022.  Provisions allowing emergency regulations to override laws and guarantee immunity to officials acting in “good faith” were incompatible to the State party’s obligations to prevent and investigate human rights violations.  What plans were there to review Security Ordinance 25 to ensure Covenant rights remained protected?  These states of emergency led to restrictions on the freedom of religion, speech, assembly and liberty.  In April to May 2022, a state of emergency was imposed to crackdown on peaceful protesters and prevent them from voicing their grievances amidst an economic collapse in the country.  During the period, over 150 protestors were injured and five were killed.  These events infringed on the prohibition of torture, the right to assembly, the right to expression and freedom of religion.  What steps would be taken to investigate these human rights violations and what mechanisms were in place for victims to obtain justice?

A new terrorism law would soon be finalised.  The existing law was too broad and had been used to target minorities such as Muslims, Tamils, lesbian, gay, bisexual, transgender and intersex persons, and to deny detained individuals their rights.  When would the existing prevention of terrorism act be repealed or replaced?  Had the State party considered amending the Penal Code instead of drafting a new terrorism law?  To be in line with the Covenant, the new terrorism law would need to at a minimum protect detainees from torture, require law enforcement to inform detainees of the reasons for arrest, guarantee detainees the right to legal counsel, and guarantee those arrested to be brought promptly before a judge. 

Reports of those detained under the Prevention of Terrorism Act who had either been killed or detained without judicial oversight were concerning.  When such cases went to trial, it appeared that the burden of proof was shifted from the State to the accused, which was in violation of article 14 of the Covenant.  What was the total number of cases and convictions initiated under the Prevention of Terrorism Act since November 2019?  What steps has the Government undertaken to improve the fairness of trials for individuals currently held under the act?

Responses by the Delegation

The delegation noted that the constitutional review process to create the 21st amendment involved keeping all the positive aspects of amendments 19 and 20. 

The 21st amendment stipulated that the parliament was to reflect the pluralism of Sri Lankan society.  Commissions were important.  Civil society members who had become party to commissions had proven their integrity and their nominations would be approved by parliament.  It was the duty of the Constitutional Council to recommend commission members to the president.  Recommendations had to consider gender balance.  Appointments were vetted by the Council and made by the President.

Legislation had to be reviewed by the Supreme Court under article 118 of the Constitution.  The extension of the “pre-enactment review” of legislation was a significant development.  The 21st amendment extended the former one-week public scrutiny period, in which anyone could challenge a bill, to fourteen days.  The 21st amendment had retained the positive aspects of previous amendments. 

The Supreme Court judgment in appeal 32 of 2011 pronounced that consensual sex between adults should not be policed by the State nor subject to criminal charges.  Since then, a private members bill had been drafted and was being considered.  The bill amended the penal code in reference to lesbian, gay, bisexual, transgender and intersex persons.  The Inspector General of Police had issued views on case 425 of 2021 on lesbian, gay, bisexual, transgender and intersex issues.  Proceedings were terminated earlier this year.

Emergency regulations were promulgated under article 155-2 of the Constitution, which indeed extended the power to override any law except for the Constitution.  The 19th amendment, which subjected the President’s actions to judicial review, also had a provision for emergency regulations to be challenged by the Supreme Court.  Currently there were cases pending within the Supreme Court on this matter.  Judicial independence was maintained.

The review of the Prevention of Terrorism Act currently underway was a significant step in protecting human rights related to terrorism.  Amendments were adopted in March 2022 to specify the rights of persons in the context of the Prevention of Terrorism Act and introduce safeguards.  Discussions were held in the presence of civil society organizations.  Magistrates were dutybound to visit a place of detention within 48 hours of issuing a detention order.  A certified copy of the detention order had to be made available to the magistrate.  The detention of any person under section 9 of the Prevention of Terrorism Act had to be reported to the Human Rights Commission so that the authorised persons of the Commission could visit places of detention.  Magistrates had a duty to verify each month that detained persons were not subject to torture or inhumane conditions and note any complaints.  The magistrate could demand that the detainee be presented before a committee in view of changing the location of detainment.  In cases of torture, medical intervention was provided and the perpetrator was charged.  Detainees were able to communicate with their relatives.  Previously, pre-trial detention could last up to 18 months; after the reforms, the period was reduced to 12 months. 

The court of appeals could release a detainee on bail if a verdict had not been reached after 12 months upon application made by the detainee or a legal professional.  Amendments to the Prevention of Terrorism Act were underway and the Attorney General had given his certificate of constitutionality.  A two-week period to challenge the bill would be respected after it was submitted.

Follow-Up Questions by Committee Experts

A Committee Expert said that the constitutional reform process had taken place several times and noted that this current process attempted to integrate fundamental rights, including the right to life and non-discrimination of lesbian, gay, bisexual, transgender and intersex persons.  Where was the State party in the process?  Measures were in place to safeguard the political independence of the Constitutional Council, but it seemed that political parties had an undue influence on the Council.  Why did the 21st amendment not require the presence of representatives of non-governmental organisations in the Constitutional Council?  Why had the State party failed to amend the penal code to criminalise discrimination against lesbian, gay, bisexual, transgender and intersex persons?

Another Committee Expert addressed accountability for human rights violations.  Interference in investigations was concerning.  The withdrawal of the lawsuit for the assassinated member of Parliament Nadaraja Raviraj and the 2012 acquittal of police in the 2012 Welikada prison massacre, where 27 prisoners were killed by prison officials, were examples.  Were there updates on these cases? Why had a court independent from the Executive not been established?  What steps were taken to allow victims who had fled the country out of fear to testify and how would the independence of such a body be assured?  There was a general concern over lack of progress in investigating human rights violations.  Two previous High Commissioners for Human Rights had called the murder of five Tamil students in 2019 an example of impunity.  How would justice for victims of human rights violations be ensured?

The February 2019 Office of the United Nations High Commissioner for Human Rights report included recommendations to enact legislation to criminalise war crimes, crimes against humanity, genocide and enforced disappearances without statutes of limitation, and to enact internationally recognised modes of criminal liability.  So far, two of the mechanisms, namely the Office on Missing Persons and the Office on Reparations, had been established.  What concrete steps had been taken to implement the Truth Commission and related institutional reforms?  Had war crimes and crimes against humanity been criminalised in domestic legislation?  What measures were in place to investigate allegations of violations and abuses of human rights, and to provide victims of human rights violations with access to an effective remedy and to full reparation?

The Committee was particularly concerned by the promotion of several military officers to senior command positions despite serious allegations of involvement of troops under their command in gross violations of international human rights and humanitarian law.  The State party had even devoted a section of its report justifying the appointment of Major General Shavendra Silva, the subject of numerous allegations of human rights violations.  Had robust vetting processes been put in place to remove security personnel and other military or public officials involved in serious human rights violations, such as Commodore D.K.P. Dassanayake and Major Kamal Gunaratne?  Reports of appointments of military officials to civilian posts, particularly in the north, were also alarming.

Another Committee Expert said that while the reparations act of 2018 outlined powers and functions of the reparations office, the process for issuing reparations and policy guidelines was regrettably slow.  Were combatants eligible for reparations?  Why was an ex-military general appointed as one of five commissioners?  What measures were in place to secure adequate financing for staff and the office?  The Enforced Disappearance Act of 2018 addressed persons who were disappeared during the period of civil war.  Why didn’t the act include provisions for reparations?  What information was available on cases where the office granted compensation?  Little progress had been made in identification of human remains of missing persons.  What updates were available on the investigations into the Mantale and Mannar mass grave sites?  What measures were in place to further strengthen the forensic capacity of the Office on Missing Persons?  The State party report noted that since 2015, no report of enforced disappearances had been recorded.  Reports of short enforced disappearances for the purposes of extracting bribes were alarming. What was the State party doing to address this phenomenon and prosecute those responsible?

An Expert said over 200 death sentences had been handed down since 2019. The State party was reportedly considering issuing the death penalty even for drug offences, which did not fall under the “most serious crimes” according to the Covenant.  Was the death penalty mandatory for certain crimes?  Could it be pardoned?  There was a draft bill that had been tabled by a member of parliament to abolish the death penalty in August 2019.  Was there any progress regarding the bill?  Did the State party plan to accede to second Optional Protocol to the Covenant?

Reports indicated that persons with psychosocial or intellectual disabilities were deprived of their liberty in institutions.  The Directorate of Mental Health had recommended some amendments to the existing Mental Health Act, which were under consideration.  How would these amendments ensure the rights of persons with psychosocial or intellectual disabilities to challenge the legality of their detention before judicial authorities?

Other reports were received that drug addicts at mandatory rehabilitation and treatment centres were not medically assessed before court orders to place them in such centres, which were akin to prisons. Further, detainees in these facilities had no legal representation, which seemed contrary to the Covenant.  It was also reported that women, most of whom are considered as having psychosocial disability, are detained at the Methasevana detention centre in Gangodawila pursuant to the House Detention Ordinance of 1907 for acts of vagrancy without due process and satisfactory judicial review.  How would any of these detainees be guaranteed legal assistance or be provided an opportunity to contest their confinement?

An Expert noted that that there was indeed no intention to create an independent constitutional court.

The Committee had previously issued recommendations calling for the amendment of legislation to ensure that all security measures complied with the Covenant and prohibited arbitrary arrest, detention and torture.  The Committee had also expressed concern about reports of unlawful use of force and violations of the right to life by State agents or paramilitary groups.  Information on mechanisms to prevent the occurrence of such phenomena was welcome.  However, reports had been received that security forces had committed acts of abduction, unlawful detention, torture and sexual violence against men and women since 2016.  There were concerns that such practices might be continuing in the northern part of the country.  Was there a central registry of cases involving member of police or armed forces suspected of having committed such offences?  How many investigations, prosecutions, trials and convictions had been carried out since 2016? How many victims received reparation and of what kind?  Which court was competent to adjudicate such cases?

Reports had been received that torture was routinely committed by police throughout the country.  How many reports had been received of such cases?  What were the outcomes of the cases?  How many deaths in custody had been reported?  There was a zero-tolerance policy for torture in the country.  There were concerning reports that security forces, including the Criminal Investigation Department and the Terrorist Investigation Division, frequently used torture on individuals detained on suspicion of crimes that threatened national security, and to obtain confessions.  Were such confessions admissible in court?

Pre-trial detention regulations seemed inconsistent. Perpetrators of serious crimes, including enforced disappearances, were able to obtain bail, while those in pre-trial detention for minor offenses were illegible for bail.  Further, some persons had been granted bail but remained in custody.  It was reported that more than half of the current prison population was held in pre-trial detention and that it was not uncommon for it to continue for three or four years, and sometimes even 10 years. Could the delegation address this?

Responses by the Delegation

The delegation said that a process was underway to amend the land development ordonnance and to amend inheritance law.  Priority was given to women and gender equality.  The land development ordonnance amendment ensured that both male and female children would have equal inheritance rights.  The Sri Lankan legal system was a mix of customary and local law.  This left the Muslims of Sri Lanka to govern with their own laws in keeping with their religion and culture.  Discussions were ongoing within the community to amend the Muslim Marriage and Divorce Act.  The bribery commission had a hotline that received complaints in all three official languages.  Sexual bribery required urgent redress.  The Penal Code would be amended to make sexual bribery an offense, specifically within corruption legislation.  Legislation criminalising marital rape was being reviewed to bring it into line with international standards.  A committee had proposed a new law to reimburse any legal fees for victims and implement a victim information register.  The new law was before the Cabinet.

In 2017, an amendment was enacted so that victims could provide evidence from a remote location.  The national authority for the protection of victims of crime and witnesses had been established to protect the interests of victims and witnesses.  It would identify and implement a proper legal framework and conduct inquiries.  Awareness raising programs were also implemented and 960 public officials had been educated on the interests of victims and witnesses. 

The >Methasevana estate house housed women sentenced to rehabilitation instead of judicial sanctions.  Its maximum capacity was 200 persons and currently just over 140 were housed there.  Proper conditions, including psychosocial support, were provided.  The program was subject to judicial oversight. Vocational training was also available for these women.

In line with the Government’s zero tolerance policy on sexual and gender-based violence, an action plan was drafted.  65 per cent of measures had been implemented and 48 per cent of goals had been achieved. A new action plan for 2023 to 2027 was in preparation.  Safe homes had been established in ten districts for women affected by sexual and domestic violence.  There were also two shelters for women with disabilities.  The need for amending act 34 of 2005 had been examined by a committee of all stakeholders.  Proposed amendments to the act included referring the aggrieved person to counselling and medical services, monitoring of actions taken, and directives for police personnel in case of violation of regulations.

Sri Lanka’s withdrawal from Human Rights Council resolution of 30/1 and its rejection of succeeding resolutions was based on constitutional conflict and procedural issues.  The resolution impinged on the sovereignty with the nation. Nonetheless, the State party continued its collaboration with the Council in a spirit of dialogue.  Any measures on reconciliation needed to be based on cooperation with the concerned country and be consonant with the country’s legal framework.  Several post-conflict issues had been resolved by successive administrations, such as restoration of security, resettlement of displaced persons and de-mining of certain areas.  The Office of Missing Persons, Office of Reparations and Office of Reconciliation had provided relief to aggrieved persons.  A truth-seeking mechanism was a meaningful way for Sri Lanka to obtain peace.  A draft law concerning such a mechanism was under discussion.

A committee directed the All-Party Conference on issues of accountability and meaningful reconciliation.  The President expressed that reunion and integrity toward reconciliation should be made as soon as possible to expedite economic recovery.  Further, the Office for Overseas Sri Lankan Affairs facilitated access to the country to Sri Lankans worldwide through a digital platform.  The Office would promote tourism, establish a new market for Sri Lankan products and help the process of reconciliation.

The COVID-19 pandemic delayed the National Reparations Policy’s approval.  However, some reparation activities took place through the policy’s framework before its approval.  Families of missing person had been included in reparation processes from the outset.  Once a person was certifiably missing, compensation issued was equal to that issued in the case of a deceased person.  The Office of Reparations should not be measured by monetary amounts disbursed.  The psychosocial care it provided, especially for women-headed households in the north and east of the country, was notable.  Interviews took place with victims and families to design support programmes so that their needs would be met.  Appointments to the Office could be made by the President upon recommendations by the Constitutional Council.  14,988 complaints of missing persons had been recorded in total since the war.  The office focused on protecting families and collecting forensic evidence.  48 protests were organised by families of victims of enforced disappearances.  85 per cent of families had participated in preliminary inquiries, which aided them in finding lasting solutions. 

Questions by Committee Experts

A Committee Expert asked what the status was of the constitutional reform process.  A commitment was made during the Universal Periodic Review that discrimination based on language, sexual orientation and gender identity would be addressed in legislation.  Did the State party still plan to do this?

Another Committee Expert asked for more detailed information on the application of the state of emergency laws.  How would those laws be implemented in a way that was consistent with the Covenant?  Was there any specific information on reprisals?  The Prevention of Torture Act had been amended but had not changed what constituted terrorism, which was too broadly defined.  The definition still allowed for minorities or political opponents to be targeted.  Prison terms and confessions possibly obtained under torture being permissible under the act conflicted with the Covenant.  How would the draft of the new Prevention of Torture Act align with recommendations made by various Special Rapporteurs and the Working Group on Enforced Disappearances?

A Committee Expert recognised efforts made by the State party to fight gender-based violence.  How had the legislation worked in practice?  Underreporting of gender-based violence was concerning, as it signified a mistrust in the complaints mechanism or authorities.  The Committee was aware of several complaints made to State and human rights agencies but what were the outcomes for the victims and the perpetrators?  Were there efforts to repatriate victims of sex trafficking in Oman?  Sometimes the Attorney General appealed on behalf of the perpetrators of police violence and could even reduce their sentence.  This climate of impunity was unacceptable. 

People who died in custody died in the responsibility of the State.  The State was therefore responsible for investigating these deaths.  What was the role of the prosecution and the Attorney General when representing perpetrators?  The Attorney General was responsible both for representing the State and bringing indictments to court.  This could result in conflict of interests.  There were still people detained in several army camps.  Were the camps visited by the Human Rights Commission or the magistrate?  Could people be detained under police curfews? Pre-trial detention was a grave problem for the State party.  Could the delegation comment on this?

An Expert said the violation of women’s human rights following forced migration was concerning.  Forced migration could lead to sexual violence and trafficking.  The Committee had been informed that within the country, communities and even diplomats facilitated the exploitation of migrant women.  This phenomenon was not limited to Sri Lanka and the State party was suffering from difficult times. 

Responses by the Delegation

The delegation said that the Attorney General did not represent persons or officers wherein there were allegations of torture, which was in compliance with the zero-tolerance on torture policy.  Murder charges were issued in some cases of torture.  After conviction, cases were further pursued under the Torture Convention.  The magistrate could change the place of detention for detainees.  Under the Prevention of Terrorism Act, all confessions were be submitted to an inquiry before being used during a trial.  The zero-tolerance policy on torture was observed and the Attorney General’s department had a special office to deal with the issue.  When internal investigations and disciplinary procedures took place, sanctions were imposed, including on the possibility to be promoted.  The National Police Commission had powers under the Constitution to investigate complaints made about the police.  It investigated allegations of torture together with the Human Rights Commission.  The magistrate was given certain judicial oversight over the detention and torture of persons.  Sri Lanka had acceded to the Optional Protocol to the Convention against Torture in 2017 and the Human Rights Committee was designated as the preventative mechanism.

Sri Lanka’s jurisprudence on fundamental rights guaranteed the right to life.  Sri Lanka was abolitionist in practice; a moratorium on the death penalty had been maintained since 1976.  Several fundamental rights cases in the Supreme Court had considered the death penalty.  The incumbent President had stated that any death penalty assigned to defendants would not be signed by him.  The death sentence could not be issued for any person under 18 years old.

The mental health of convicted persons was assessment by medical personnel.  Any officer of the police force, village headman or private person who had reason to believe a person was of unsound mind could notify the district court and the court would investigate.  Therefore, mental health was indeed subject to judicial review.

The national anti-human trafficking taskforce established a special investigations unit which focused on migrant workers, among others.  11 indictments and one conviction were issued.  A hotline for reporting trafficking had been expanded to an online platform and a new shelter for victims had been built.  Capacity building programmes were available for prosecutors working on human trafficking cases.

The state of emergency was promulgated through the public security ordonnance to suppress mutinies, riots and other specific cases.  Care was taken to protect the people during states of emergency in line with article four of the Covenant.  Cases were pending in the Supreme Court about such specificities currently.  Act 27 of 2017 introduced measures that allowed for witnesses to testify remotely, even from out of the country.  This was a way to protect witnesses.

Follow-Up Questions by Committee Experts

A Committee Expert said that the judicial service commission was responsible for transfer of judges, and it was composed of people appointed by the President.  Reports of judges transferred as retaliation were concerning.  Were rules disciplining judges published?  What were they?  Would the commission be expanded to make the appointment process less political?  How were Supreme Court judges protected from arbitrary impeachment?  Staff Sergeant Sunil Rathnayake, who was convicted of killing eight Tamil villagers in 2000, was released by presidential pardon in 2020.  The overreach of executive power was of great concern and fostered impunity for perpetrators of grave offenses.  What measures were in place to oversee presidential pardons?

There was apparently a backlog of 40,000 cases in the criminal justice system and some cases had taken 15 years to reach trial.  What measures would be taken to expedite indictments?  How would the impartiality of the Attorney General be ensured?  The lack of access to justice for speakers of Tamil, an official language, was concerning.  Would more translators be employed by the courts?

In 2007, the State party adopted the International Covenant on Civil and Political Rights Act.  Despite its name, it was highly problematic and had been used to criminalise free speech and target minorities such as Muslims and Tamils.  Under the Act, award-winning writer Shakthika Sathkumara was arrested for advocacy of religious hatred for writing a story about homosexuality and child abuse in a Buddhist temple.  Despite a lack of evidence of incitement, he was denied bail twice.  What procedures were in place to grant bail in a timely manner?  How did this act ensure compliance with the Covenant?  How would the Government prevent misuse of this act to curtail free speech and assembly in the future?

Targeted harassment of journalists was concerning.  What mechanisms were in place for journalists and human rights defenders to seek redress after harassment?  Were there training programmes on the importance of journalists and free media?  A journalist had been murdered after testifying against a president in a corruption trial.  Eight non-governmental organisation members had been murdered execution-style.  Was there more information on these events, including on investigations or trials?  How did new legislation on fake and misleading statements align with freedom of expression? 

A Committee Expert noted progress made in settling internally displaced persons.  Various measures had been undertaken following a national policy approved in 2016 for those displaced and refugees unable to pursue their property rights in the conflict.  92 per cent of the private land held by the military was also released to legitimate civilian owners.  Reports of land grabs through intimidation by the military were concerning.  Further military infrastructure and military businesses were being developed across the northeast.  Why had military zones and operations continued to expand to the region despite the State party’s commitment to reducing its presence?  Traditional Tamil lands had also been annexed through the Government’s irrigation schemes and Sinhalese were displaced following irrigation.  Such measures prevented thousands of Tamils from making land ownership claims or pursuing their livelihoods.  How would the State party ensure land rights of those returning to their land were protected?

A rise in discrimination against refugees and asylum seekers was concerning.  While the Government’s response to the Easter Sunday massacre was commendable, legislation imagined them as undocumented immigrants.  Would the State party consider adopting legislation to legally define refugee and asylum-seeking status?  Were there trials for perpetrators of targeted harassment or violence against asylum seekers and refugees?

The ethnicization of politics as well as Sinhalese-centric publication had created an exclusion of Tamil and Muslims from political life.  What measures were taken in institutions to accommodate ethnic, linguistic and religious diversity?  Reports that roadblocks and violent attacks on public transportation had prevented some people from voting.  Reports indicated that the 9 March elections had been scuttled.  How would the independent election commission carry out its mandate?

A Committee Expert recalled a government commitment to criminalise national or religious hatred inciting hostility, discrimination or violence.  However, the counterterrorism laws were widely used to target Tamil and Muslim minorities.  Buddhism had a foremost place in the country while several Hindu temples and Muslim shrines had reportedly been taken over.  Violence and hate speech against Muslims, Hindus and Christians remained unaddressed, with perpetrators not being held to account.  Could the delegation address this?  What measures prevented violence against ethno-religious minorities and provided a framework for prosecution.  Obstacles in registration of religious institutions and physical assaults against Muslims and Christians, including in their places of worship, were concerning.

There were restrictions on meetings of non-governmental organisation and civil society organizations as well as allegations of harassment, surveillance and intimidation of allegations of terrorism against them.  How was restricting the right to assembly to maintain religious and racial harmony compatible with the Covenant?  Why were police officers given powers to prohibit a demonstration if they “deemed it necessary”?  Why were water cannons used to suppress demonstrations?

Various legal restrictions presented obstacles to establishing non-governmental organisations.  These restrictions were unduly burdensome, requiring a large amount of information, including personal information of those registering the organisation.  A refusal was not appealable.  Organisations working on politically sensitive topics including transitional justice and the rights of lesbian, gay, bisexual, transgender and intersex persons were regularly restricted.  Could the delegation address this?

More than 40 civil society organizations had made reports of harassment and surveillance.  Activists and journalists had gone into hiding after being informed they were on the Government watch-list.  Was there a mechanism to receive complaints from civil society and non-governmental organisations when their rights were restricted?

Responses by the Delegation

The delegation said the independence of the judiciary was ensured and any infringement on its independence would be sanctioned.  Article 107 of the Constitution stated that all judges were required to maintain their independence and could be removed by the President if they did not.  Parliament would hear appeals upon the removal of judges.  To speed up justice, the State party was establishing new court houses, digitalising the court system, conducting trainings, and increasing the number of judges in the court of appeals and the Supreme Court.  The justice reform process was ongoing.  More judicial officers had been recruited.

A special unit was established, and 2,324 internally displaced persons were currently housed in welfare centres and 13.3 acres of State land were allocated to those families.  34 families had been taken care of and 30 remained to be taken care of.  Larger families and single-members families were prioritised.  In the Eastern Province, there were 50 families that would be resettled.  The President had appointed a committee to classify land as forest land.  If security forces wanted to maintain land, a mechanism allowed them to lease it from the owners.  As agricultural landowners were displaced by the construction of an airport extension, they would be given agricultural land upon resettlement.

In keeping within Sri-Lankan societal norms, religious dialogue took place at various levels to ensure faith, harmony and understanding.  The State party was committed to ensuring security and safety for all, irrespective of their religious, ethnic or racial background.  All had rights to enjoy their own culture and religion and promote their own language.  The Office of Reconciliation was developing an action plan on preventing extremist violence.  Throughout the country, inter-religious dialogue was held with clergy-members and civil society actors.  The Office of Reconciliation was in the process of developing a new thematic area to mainstream human rights standards in the reconciliation process.

There were different legal frameworks in place addressing non-governmental organisations.  The Voluntary Social Service Organisation Act was significant in this regard.  A new bill was being drafted and the opinions of civil society organizations had been solicited on it.  In 2022, the Ministry of Public Security started the dialogue process with civil society organization and non-governmental organisation to integrate their views in the new Voluntary Social Service Organisation Act.  The Ministry had received proposals.

The Government guaranteed the security of asylum seekers and refugees with the help of the Office of the United Nations High Commissioner for Refugees.  Some were resettled, and they were taken care of by the State and civil society organizations.  The Government was committed to caring for these populations despite not being a party to the 1951 Convention Relating to the Status of Refugees.

The judicial service commission had been appointed by the President, but was subject to Constitutional Council approval.  Indictments were issued by the Attorney General only after a vetting process, and those indictments were subject to scrutiny.  Recruitment was underway for the Attorney General’s department.  Presidential pardons could be subject to judicial review and some cases were underway in this regard.

The Constitution of Sri Lanka ensured the freedom of speech and assembly with some restrictions.  All steps taken by authorities were within the legislative framework in respect to civil and political rights.  All authorities’ actions were subject to judicial oversights.  Several aggrieved parties had gone before the Supreme Court and those cases were in process of adjudication.  The rule of law was of paramount consideration and no infringement on Government functioning nor the freedoms of others in free speech or assembly was tolerated.

Article 9 of the Constitution encouraged the State to give Buddhism the foremost place and protect the Buddhist Asana, but all religions were guaranteed rights in the Constitution.  Article 9 had to be read in conjunction with 10 and 14-1E.  Rights of other religions were also protected.

The Government rejected unsubstantiated accusations against Sri Lankan military officials, particularly regarding the last stages of the conflict.  In the absence of substantive proof, the Government considered claims of crimes against humanity made against these senior officials unacceptable and a violation of natural justice.  No factual or proven allegations of human rights violations existed against General Shavendra Silva.  Those appointed to Government office were qualified based on experience and expertise.  Many countries had appointed retired military personnel to Governments.

Actions under military law for allegations of torture could be undertaken through court martial.  The armed forces maintained a good relationship with in the north and any allegations of harassment would be addressed by the military, police and would be investigated and eventually prosecuted. 

Follow-Up Questions by Committee Experts

A Committee Expert said that violations in the Joseph military camps remained unanswered.  The Army Court of Inquiry examined video evidence of extrajudicial killings during the final stages of the conflict and found that no violations had occurred.  Had the Government re-examined these events?  Major General Kulatunga was a member of the delegation.  Could he comment on the issues?  He was a part of the Army Court of Inquiry and was Commander at the Joseph military camps.

Another Expert said impunity was a major concern for the Committee because it was a litmus test for turning theory into practice.  Few cases ended in sanction.  Victims had a right to reparation.  The longer the justice process, the lower the probability that the victim received repair.  The Committee invited the State party to investigate human rights violations.

The Judicial Service Commission was unique, and not in a favourable way.  If the Constitutional Council was composed by a majority of the parliament and the opposition members, it was a clear interference of the executive and legislative branches.  Most of the judges and public prosecutors as well as the judicial council were appointed by the President.  Justice had to be seen as independent in the country.  If there was possible interference on the part of the executive and legislative branches, the public would be suspicious of the judiciary.  How would the State party inspire trust in the public?  Was there any oversight or judicial review of intelligence services, especially regarding investigations of journalists?

A Committee Expert said that exception to the right to freedom of association in the interest of religious and racial harmony and the national economy was not an acceptable exception. Could the delegation address this?  Was more information available where judicial oversight took place for persons with mental or intellectual disabilities?  Would the death penalty be limited to serious crimes, such as intentional killing?  Would the State party consider no longer giving the death penalty for drug offences?

Another Expert noted that in response to a question on marriage, the delegation spoke exclusively about land rights.  Child marriage and teenage pregnancy legally continued.  The Expert hoped that the Government would take a step-by-step process to address these issues, rather than be trapped in a process of lengthy review. 

Responses by the Delegation

The delegation said the Constitution mandated the process for the appointment of members of the Judicial service Commission based on court experience.  The final appointment was done by the President.  The incumbent President would not sign any order for the death penalty.  He had committed to this in front of the Supreme Court.  Persons under 18 could not receive the death penalty.

Restrictions set out under article 15-7 had exceptions under public safety provisions.  Restrictions imposed were not imposed in isolation but were informed by law.  The right to peaceful expression had to be within the boundaries of the law and the authorities would act if those boundaries were not respected. 

Closing Statements

HIMALEE ARUNATILAKA, Permanent Representative of Sri Lanka to the United Nations in Geneva and head of the delegation, said that Sri Lanka participated in the review in the spirit of openness and constructive engagement amidst several socio-economic challenges.  Since its sixth periodic report, many developments had taken place within the country including on gender equality, reconciliation and the adopted 21st amendment to the Constitution.  There were still constraints and issues that needed to be addressed, as in all countries, to ensure civil and political rights for all people in Sri Lanka.  She reiterated the Government’s commitment to protecting the human rights for all the people of Sri Lanka.

TANIA MARÍA ABDO ROCHOLL, Committee Chairperson, thanked the delegation for their presence and non-governmental organisations for their valuable contribution.  The meetings were an important space to address issues including constitutional reform, accountability for serious human rights violations, the independence of the judiciary, internally displaced persons, national religious hatred, and the right to peaceful assembly, amongst others.  The Committee sought better cooperation with the Government of Sri Lanka to better implement the Covenant.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2023/03/dialogue-sri-lanka-experts-human-rights-committee-commend