TIC: Discriminating And Disproportionate Actions Against Minorities.

18 June 2020

Sri Lanka:
Discriminating And Disproportionate Actions Against Minorities.

Withdrawal from UN Resolution

Sri Lankan Prime Minister Mahinda Rajapaksa announced on 19 February 2020 that Sri Lanka would be withdrawing from the UN Human Rights Council (UNHRC) Resolution 30/1 of 1 October 2015. The Resolution called for investigation into war crimes during the civil war. Sri Lankan Foreign Ministry Secretary Ravinatha Aryasinha informed the UNHRC President Elisabeth Tichy-Fisslberger in late February 2020 that Sri Lanka had decided to withdraw from the Resolution.

Resolution 30/1 included the following among several other issues:

“The Human Rights Council,

6. welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators;

7. encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report of the Office of the High Commissioner, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the Lessons Learnt and Reconciliation Commission;

8. also encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process, which will help to enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law, including members of the security and intelligence units; and also to increase training and incentives focused on the promotion and protection of human rights of all Sri Lankans.”

The Sri Lankan Minister of Foreign Relations Dinesh Gunawardena, addressing the 43^rd session of the UNHRC on 26 February 2020, said that “Sri Lanka will withdraw its co-sponsorship of Resolution 40/1 of March 2019 on Promoting reconciliation, accountability and human rights in Sri Lanka, which also incorporates and builds on preceding Resolutions 30/1 of October 2015, and 34/1 of March 2017”. He added that the Sri Lankan government declares its commitment to achieve sustainable peace through an inclusive, domestically designed and executed reconciliation and accountability process, including through the appropriate adaptation of existing mechanisms, comprising a Commission of Inquiry to review the reports of previous commissions which investigated alleged violations of human rights and international humanitarian law, to assess the status of implementation of their recommendations and to propose deliverable measures to implement them.

UN High Commissioner for Human Rights Michelle Bachelet expressed disappointment over the Sri Lankan decision and said that the ‘fundamental problem remains that Sri Lanka has still not addressed impunity for past violations, nor undertaken the security sector reforms needed to address their drivers and enablers. She declared that she is ‘not convinced the appointment of yet another commission of inquiry will advance this agenda’ and ‘as a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.’

The present Sri Lankan government has taken a number of steps that are against pledged measures and clearly aimed at denying the legitimate rights of the minority communities.

Appointment of Shavendra Silva

The decision to withdraw from the UN Resolution appears to have been tak en after the United States imposed an order preventing Sri Lankan Army Commander Shavendra Silva and his family entering the country. Shavendra Silva is accused of involvement in war crimes and crimes against humanity during the civil war. Although the war ended in 2009, successive governments have failed to investigate war crimes and crimes against humanity.

When Shavendra Silva was promoted to Lieutenant General and appointed as Commander of the Sri Lankan Army, the UN High Commissioner said on 19 August 2019 that she was ‘deeply troubled by the appointment’ ‘despite the serious allegations of gross violations of international human rights and humanitarian law against him and his troops during the war.’

The UN Panel of Experts on Accountability in Sri Lanka said in 2011 that an estimated 40,000 Tamil civilians may have been killed in the final stages of the war between September 2008 and May 2009.¹ The UN Panel also said that the Sri Lankan armed force assault by land, sea and air on the no-fire zone where 300,000 to 330,000 Tamils had taken refuge on the instructions of the government, ‘employed aerial bombardment, long-range artillery, howitzers and MBRLs (multi-barrel rocket launchers) as well as small mortars, rocket-propelled grenades and small arms fire, some of it at close range’.²

Task Force for Archaeological Heritage Management

On 2 June 2020, President Gotabaya Rajapaksa established the Task Force for Archaeological Heritage Management in the Eastern Province.³ The Task Force includes two Buddhist priests, a retired military officer, a deputy Inspector General of Police and professors of the universities of Kelaniya and Peradeniya. Retired Army Major and current Defence Secretary Kamal Gunaratne has been appointed as Chairman of the Task Force. Maj. Gen. Kamal Gunaratne is also accused of involvement in war crimes and crimes against humanity.

The Task Force has been directed to identify archaeological sites of importance in the Eastern Province; implement a programme for management and conservation; identify the extent of land that should be allocated for such sites and allocate them legally; preserve the cultural value of sites and promote the uniqueness of Sri Lanka, both locally and internationally, and make recommendations for the promotion of such heritages. All officers of ministries, departments, state corporations and other government institutions have been instructed to cooperate with the Task Force.

The Task Force does not include a Tamil or a Muslim although Tamils and Muslims form 74% of the population of the Eastern Province. The Task Force excludes not only Tamil and Muslim archaeologists but also distinguished Sinhalese archaeologists. Settlement of Sinhalese people in the Northern and Eastern provinces by the displacement of the Tamil and Muslim population has been an enthusiastic task for successive governments in the past 70 years. Large tracts of land belonging to the minority communities have been occupied by force and Tamils and Muslims have been driven out of whole villages with the assistance of the Sri Lankan security forces. Many people have also been killed by the settlers or the security forces. The subject of archaeology became a tool in the hands of the governments. This forcible occupation continued with vigour during the tenure of the Rajapaksa brothers between 2005 and 2015. The appointment of the Task Force is clearly the continuation of occupation of lands and driving out the Tamil and Muslim people.

Task Force for Secure Country, Disciplined, Virtuous and Lawful Society

President Gotabaya Rajapaksa also appointed the 13-member Presidential Task Force to build a Secure Country, Disciplined, Virtuous and Lawful Society on 2 June 2020 with powers to request assistance from all government officers and others.⁴ He instructed all government officers and others to provide all possible assistance and information to the Task Force.

The Chairman of this Task Force is Major General Kamal Gunaratne and the Secretary of the Task Force is D. M. S. Dissanayake who is an Assistant Secretary in the Ministry of Defence. The Commander of the Army, Shavendra Silva is a member of this Task Force. It also includes Commander of the Navy Vice Admiral Piyal de Silva; Commander of Sri Lanka Air Force Air Marshal Sumangala Dias; Inspector General of Police C. D. Wickremarathne; Director General of Customs retired Major General Vijitha Ravipriya; Chief of National Intelligence Service retired Major General Jagath Alwis; Director of State Intelligence Service Major General Suresh Salley; Director of Army Intelligence Unit Major General A. S. Hewavitharana; Director of Navy Intelligence Unit Captain S. J. Kumara; Director of Air Force Intelligence Unit Air Commodore M. D. J. Wasage; Special Task Force Deputy Inspector-General T. C. A. Dhanapala; and Deputy Inspector-General of Police Waruna Jayasundara. This Task Force also does not include any Tamil or Muslim.

The Task Force has been given the following tasks:

1. Taking necessary immediate steps to curb the illegal activities of social groups which are violating the law which is emerging as harmful to the free and peaceful existence of society at present in some places of the country;

2. Take necessary measures for prevention from drug menace, prevent entry of drugs from abroad through ports and airports and to fully eradicate drug trafficking in the country and to prevent other social illnesses caused by drug abuse;

3. Take necessary measures to take legal action against persons responsible for the illegal and antisocial activities conducting in Sri Lanka while locating in other countries;

4. To investigate and prevent any illegal and antisocial activities in and around prisons.

The term “social groups” has not been defined in the Presidential Directive and people have expressed fear that international and national NGOs, human rights organizations and civil society activists will be targeted by the Task Force.

The International Commission of Jurists (ICJ) says that the appointment of the Task Force empowers its military and police membership, including alleged war criminals, at a time when strong, independent, civilian-led policy-making is what is needed, and views the appointment with broad powers as another act by the Sri Lankan government seeking to take advantage of the COVID-19 pandemic to expand its powers. The ICJ further says that the task force could effectively usurp the powers and functions normally reserved for civilian authorities under rule of law principles and as established by the Sri Lankan Constitution and relevant enabling legislations.

The ICJ has expressed concern that the Task Force will be used as another tool to suppress speech and to target critics of the Sri Lankan government. It emphasizes that the role of the military in public life must be strictly circumscribed and matters pertaining to civil administration should be executed by elected and public officials in respect of the rule of law and principles of democratic governance. The ICJ called upon President Gotabaya Rajapaksa to rescind the Gazette notification establishing the Presidential Task Force.

Human rights organisations and activists say that independent commissions, including the Elections Commission, the Human Rights Commission, the Right to Information Commission, and the Public Service Commission, state universities and state media, are “public” institutions and it appears that they must follow directives by the Task Force. Conduct of elections, appointments and transfers of the public service and the police, and development activities may also come within the powers of the Task Force. They point out that if this Task Force continues to function, Sri Lanka would have established a military regime, within a civilian administration. They have expressed fear that the Task Force will operate without the checks and balances of the Sri Lankan Constitution, and civilian institutions and can become the first step to the creation of a military dictatorship in this country.⁵

Appointment of military officers

Defence Secretary Major General Kamal Gunaratne declared in March 2020 that in order to ensure the country’s national security, the government had merged “military and civil capabilities through Integrated Contingency Planning to enable the military to work alongside civilian first-responders in order to mitigate the impact of disaster situations, workers’ strikes and civil unrest, and take the lead if necessary.” From 24 February 2020, military police personnel supervised by the Army Commander Lieutenant General Shavendra Silva have been deployed to assist the Colombo City Traffic Division. Since Gotabaya Rajapaksa became President, military officers have been appointed to district secretariat panels interviewing applicants for a job-creation programme initiated by the government.

Criminal investigations into terrorist activities, earlier conducted by the police Criminal Investigation Division (CID) were brought under a task force headed by Army Intelligence Service Director, Major General Jagath Alwis, thus interfering in legal procedures relating to criminal investigations.

Maj. Gen. Kamal Gunaratne is also Chairman of the Telecommunications Regulatory Commission of Sri Lanka (TRCSL) which has powers over licencing of radio stations and Television channels, the Internet and social media. TRCSL was placed under the control of the Defence Ministry in March 2019. In addition to Shavendra Silva and Kamal Gunaratne, the Sri Lankan President Gotabaya Rajapaksa (who is former Army Lieutenant Colonel and former Secretary of Defence) has appointed a number of military officers to civilian positions.

The State Intelligence Service (SIS), which was earlier under the Police Department, has been brought under the former chief of military intelligence Brigadier Suresh Sallay. Sri Lankan ambassador to Switzerland C. A. Chandraprema was a member of a shadowy group within the Army which was responsible for the death of thousands of people during the Sinhalese youth uprising in 1971. Retired Major General Prasad Samarasinghe has been chosen as the Chief Manager of the Lotus Tower Project in Colombo. Retired Admiral Jayanath Colombage is Additional Secretary to the President for Foreign Relations and retired Major General Vijitha Ravipriya has been appointed as Director General of Customs. Major General Darshana Hettiarachchi was appointed as Commissioner General of Rehabilitation. Major General Daya Ratnayake is Chairman of Ports Authority. Major General Sumedha Perera has been appointed as Secretary of the Ministry of Mahaweli, Agricultural, Irrigation and Rural Development and as a member of the Task Force for Poverty Eradication and Livelihood Development. Prasanna de Alwis is Director of Terrorism Investigation Division and Major General Jagath Alwis is Chief of National Intelligence. Retired Major General Nanda Mallawarachchi has assumed duties as the Director General of the Department of Multi-purpose Development Task Force.

These military officers have been accused of war crimes, crimes against humanity and human rights violations including torture.

The UN Human Rights Commissioner has said she is troubled by the Sri Lanka’s trend towards moving civilian functions under the Ministry of Defence and retired military officers. She has expressed concern over the increasing levels of hate speech and security and police measures that appear to be discriminatingly and disproportionately directed against minorities.

The military in the North-East

The 240,000 personnel of the Sri Lankan military remain in the North-East region, including around 60,000 in Mullaitivu District, and continue to occupy lands belonging to the Tamil and Muslim people. The military remains in the North-East in great numbers during peace time for specific purposes.

The government claimed in September 2017 that the military occupied 89,000 acres of state land and 30,000 acres of private land and that more than 40,000 acres of land had been released. However the government has not released the details of the land occupied and land released. Apart from the military, government corporations and departments have taken over land belonging to the people or occupied by the people before the war. Human Rights Watch says that the ‘military occupation of land is a significant stumbling block to post-war normalization and reconciliation, heightening concerns that the Sinhalese-dominated state is seeking to diminish the rights of minorities through continued militarization and territorial aggrandizement.’⁶

During the COVID-19 lockdown and curfew between 1 February and 30 April 2020, Sri Lankan human rights NGOs have recorded 95 incidents of physical attacks, verbal threats and hate speech. The perpetrators were the police, military, government officers, politicians and business persons. The victims were government officials, journalists, civil society activists and protesters.⁷

The military is involved in activities of schools in the North-East. These include construction, training, educational tours, seminars and sport. The people of the North-East see the activities of the military in schools as part of a process of physical and social coercion of the population. Former military officer Dharshana Hettiarachchi said in May 2018 that the military changed tactics and targeted young students after realising that it is difficult to change the mind-sets of adults. Local people believe that controlling the people, monitoring local communities and gathering intelligence are the aims of the military. Parents seem to avoid discussing issues with their children for fear that the information may be passed on to the military. Human rights agencies have pointed out that the ‘military’s involvement in educational settings could constitute potential violations of the rights of the child to freedom of thought, conscience and religion; education directed to develop cultural identify, language and values; and the rights of ethnic, religious or linguistic minorities.’⁸

Dissolution of Parliament

President Gotabaya Rajapaksa dissolved Parliament on 2 March 2020. The Elections Commissioner scheduled Parliamentary election for 25 April 2020. Because of the virus pandemic the election was postponed to 20 June 2020. Seven fundamental rights petitions and 13 intervening petitions were filed in the Supreme Court challenging these decisions. The petitioners, including the Centre for Policy Alternatives (CPA), pointed out that under the provisions of the Sri Lankan Constitution, the intervening period from dissolution of the Parliament to the commencement of the new Parliament cannot exceed three months. The petitioners also argued that the restrictions and conditions created by the virus pandemic are not conducive for free and fair elections and that the dissolved Parliament should be reconvened to ensure proper functioning of the government without the executive overwhelming state structure.

The Sri Lankan Supreme Court rejected the fundamental petitions on 2 June 2020 without stating reasons. Observers say the court decision is paving the way for unchecked executive rule with control over the entire state machinery with the assistance of the military. The new date announced for parliamentary election is 5 August 2020. In the absence of an elected Parliament, the Executive under President Gotabaya Rajapaksa holds all the powers to establish governance institutions that can function outside the Sri Lankan Constitution. He has already established a number of such institutions.

The Tamil Information Centre,

calls on the international community including the United Nations agencies and international human rights bodies,

to consider the developments in Sri Lanka more seriously and in greater depth and take appropriate action to ensure that the country does not descend into a military-controlled dictatorship;

to take appropriate measures to end the interference of the military in schools throughout the island;

to urge the Sri Lankan government to uphold its earlier commitments from 2015 to 2019 to strengthen civil administration in the North-East instead of fortifying administration by the military;

to improve the environment for the civil society and human rights defenders to ensure that they can serve the people fearlessly without intimidation;

to uphold the rule of law and to establish a judicial mechanism to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, including independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality;

to urge the Sri Lankan government to introduce effective security sector reforms while refraining from retention in or recruitment into the security forces of persons implicated in serious crimes involving human rights violations or abuses or violations of international humanitarian law, including members of the security and intelligence units;

to urge the Sri Lankan government to complete the return of land in the North-East to its rightful civilian owners, and ensure the ending of military involvement in civilian lives and activities.