HRW: Press Ahead on Rights Reforms

President Maithripala Sirisena
Presidential Secretariat
Galle Road
Colombo 3
Sri Lanka

Dear Mr. President,

Congratulations on your recent election success. Your coalition government now has an historic opportunity and responsibility to address major human rights issues that have been ignored or exacerbated by previous administrations. We look forward to your leading efforts to address past and ongoing human rights violations in the country and re-establish Sri Lanka as a rights-respecting democracy.

Human Rights Watch is an independent, nongovernmental organization that monitors human rights developments in more than 90 countries around the world. For more than three decades we have reported on violations of international human rights and humanitarian law by state and non-state actors. Human Rights Watch relies on donations from individuals and foundations; we do not accept funds from governmental sources.

Human Rights Watch has monitored human rights in Sri Lanka for more than 25 years.  We have documented a range of issues including child recruitment and other violations of the laws of war by the Liberation Tigers of Tamil Eelam (LTTE), the mistreatment of Sri Lankan migrant workers in the Gulf, and torture and other conflict-related abuses by government security forces. Throughout we have always worked closely with Sri Lanka’s community of human rights advocates.

We welcome some initiatives your government has already undertaken, such as case-by-case reviews of those detained under the Prevention of Terrorism Act, the lifting of restrictions on media reporting, the end of Internet censorship, and the appointment of non-military personnel as governors to the North and East provinces. Also important were the removal of nongovernmental organizations from the oversight of the Ministry of Defence, and your pledge to form commissions to return land in the former war zones to their rightful owners. We hope your establishment of an inquiry into the 2012 deaths in Welikada prison is a shift away from the previous government’s unwillingness to tackle issues of accountability.

We look forward to having a constructive dialogue on human rights issues with your government.  We greatly appreciated meeting with Foreign Minister Mangala Samaraweera in New York on February 13, 2015 and thank you for the invitation extended through Mr. Samaraweera to visit Sri Lanka in the near future.

Below we outline some of the key human rights issues we would like your government to address:

Police Torture and Ill-Treatment

Recent research undertaken by Human Rights Watch found that in areas we investigated, the Sri Lankan police routinely commit torture and ill-treatment of individuals taken into custody. Sometimes torture is carried out to extract “confessions,” but it is also used for personal vendettas or to extort funds. The care that is sometimes taken to use methods designed to leave no visible marks suggests a level of institutionalization.

While Sri Lanka has legislation prohibiting torture, in practice disciplinary or criminal prosecutions against police officers and their superiors is rarely taken. In most cases of serious abuse that Human Rights Watch examined where the perpetrators were identified, they remain in active duty or merely are transferred to another police station. Only in a handful of particularly egregious cases under the media spotlight was serious action taken against the offending officers. Even in those cases, there is no history of punishing superior officers as a matter of command responsibility.

Victims of torture and their families face a daunting path to redress and justice. For those of limited means, particularly from rural communities, the various procedural steps that need to be taken can be overwhelming. Many victims report being threatened by the local police against taking any action. Even those who report being mistreated, either through a lawyer or the National Human Rights Commission, have cited ongoing harassment by the police when back in their villages.

Minority Rights

You have made important outreach to the country’s minority populations, including in your February 4 Independence Day speech in which you acknowledged the failure of the government to win the hearts and minds of all Sri Lankans, and in your February 17 speech acknowledging the important role of the Hindu community in the country.

These are important gestures, but because of the toxic legacy of the past more needs to be done to alleviate the concerns of Sri Lanka’s minority groups. In recent years ultra-nationalist Buddhist groups, particularly the Bodhu Bala Sena (BBS), have incited hatred and violence against minorities, particularly Muslims. In June 2014, protests led by BBS leader Galagodaaththe Gnanasara Thera, purportedly to express concerns for the Buddhists in Aluthgama, led to riots that left at least four Muslims dead, 80 injured, and numerous homes and businesses in the town and surrounding areas destroyed.

To prevent such violence from escalating, the government should fully investigate and appropriately prosecute members of groups such as the BBS for inciting and participating in communal violence. Additionally, allegations of security force involvement in, or failure to stop such violence needs to be thoroughly investigated, and disciplinary or prosecutorial action taken.

Civil Society and the Media

One of the first announcements both by you and Prime Minister Ranil Wickremesinghe was to assure civil society and the media that the reign of censorship, and threats and violence imposed by the previous government was over. Furthermore, you pledged to dismantle the surveillance apparatus that led critics of the government to fear that their phones were tapped and their email was insecure. You also removed the Ministry of Defence from oversight of nongovernmental organizations. These are very important steps that have brought a markedly improved environment for the long-beleaguered members of civil society and the media.

We urge you to go further to ensure that the culture of repression is well and truly a thing of the past by ordering investigations into who ordered the violations described above. Importantly, your government should prioritize investigations into some of the egregious actions over the last several years taken against civil society and the media. Some of these investigations could include, but not be limited to:

• Murder of Lasantha Wickramatunge in 2009
• Enforced disappearance of Prageeth Ekneligoda in 2010

• Arbitrary arrest, detention and ongoing travel restrictions on Ruki Fernando and Father Praveen Mahesan in 2014

Finally, we encourage your government to include civil society in consultations on important matters of public policy, such as ensuring accountability for past abuses and restoring the political independence of oversight bodies.

Prevention of Terrorism Act and Politically Motivated Torture

Your government has pledged to evaluate all cases of detainees held under the Prevention of Terrorism Act (PTA) and to either charge or release those held. As you know, the PTA has been used to hold unknown numbers of suspected LTTE members and others without charge for years. In spite of the previous governments promises to make the whereabouts of all detainees known, many family members and lawyers continue to have no information about where, or indeed if, their loved ones are detained. Prompt and thorough government action to resolve these cases should be a government priority and we look forward to official progress reports as the case evaluations proceed.

Human Rights Watch has long endorsed the position of the UN Working Group on Enforced or Involuntary Disappearances since 1999 to abolish the PTA. The PTA allows for arrests for unspecified “unlawful activities” without warrant and permits detention for up to 18 months without producing the suspect before a court. The government need not charge the person with an offense; many PTA detainees have been held for years without charge. And the act provides immunity from prosecution for government officials who may commit wrongful acts, such as torture, under the legislation.

The PTA has facilitated thousands of abuses over the years, including torture, enforced disappearances, and extrajudicial executions. While problematic during Sri Lanka’s long civil armed conflict, it is even more so since the conflict’s end. Nonetheless it continues to be used in an abusive manner.

Human Rights Watch research found that since the war the security forces have tortured numerous people suspected of links to the LTTE, including forcibly returned asylum seekers.[1] Many instances of torture, sexual violence, and other ill-treatment occurred in Criminal Investigation Division and Terrorist Investigation Division offices in Colombo and elsewhere, while others took place in unofficial places of detention. So long as unofficial places of detention are in use, arrangements with the International Committee of the Red Cross and other independent monitors will have limited impact.

The previous government took no serious action to address politically motivated torture and ill-treatment. We urge you to investigate the continued use of torture, including against returned asylum seekers, and fully prosecute those responsible. To prevent such practices in the future it will be further necessary to shut down all unofficial places of detention.

Refugees

Since early 2014, the previous government increased the forcible return of individuals seeking asylum in Sri Lanka, including some people registered with the United Nations High Commissioner for Refugees (UNHCR). Most of those forcibly returned were members of religious minorities facing persecution back in Pakistan and Afghanistan. The previous government denied UNHCR access to detained asylum seekers facing deportation, including some recognized as refugees. Although Sri Lanka is not a party to the 1951 Refugee Convention, as a matter of customary international law it is prohibited from returning a refugee to a place where they face persecution.

Conflict-Related Accountability

As you know, the resistance of the Mahinda Rajapaksa government to deliver justice to victims of Sri Lanka’s nearly three-decade long civil war led the UN Human Rights Council to call on the Office of the High Commissioner for Human Rights (OHCHR) to undertake a “comprehensive investigation” into alleged violations by both sides of the laws of war. The report of that investigation, initially due in March 2015, has been deferred unto September based on specific undertakings by your government, including that of establishing a credible accountability mechanism.

We urge you to extend all cooperation to the UN to address accountability, an issue that has far-reaching effect on the human rights situation in Sri Lanka generally. In addition to the invitation to visit Sri Lanka to High Commissioner Zeid Ra’ad Al Hussein and to the Working Group on Enforced and Involuntary Disappearances, you should also invite the OHCHR team that is preparing the Sri Lanka report to visit the country to conduct on-the-ground research. The government should also extend invitations to all UN special mandate holders who have sought access to Sri Lanka in recent years.

In terms of accountability itself, we remain concerned by references to a “domestic mechanism” that suggests no more than an advisory role for international actors. Sri Lanka has a long history, across several administrations, of establishing commissions of inquiry that have not led to prosecutions for enforced disappearances, extrajudicial killings, or other serious crimes. Some commission reports have not even been made public. The most recent such commission, the Lessons Learnt and Reconciliation Commission (LLRC), made a number of valuable recommendations over all, but largely absolved the government security forces of any laws-of-war violations and produced no meaningful avenue for accountability, in spite of credible independent evidence to the contrary. It is important to ensure that a special commission report with paid foreign experts investigating enforced disappearances is released as promised in August 2015.

Previous government investigations and commissions have been impaired by harassment, threats, and violence against witnesses to serious crimes and their families. Human Rights Watch remains deeply concerned that even an independent and impartial domestic accountability mechanism will be subject to intimidation affecting not only witnesses, but national judges and prosecutors. A predominant presence of international judges and prosecutors would reduce the pressures easily brought to bear on national judges and prosecutors, and lend a credibility and independence to the proceedings that purely national proceedings lack.  We strongly urge you to consider credible models of hybrid international-domestic courts, including the successful Special Court for Sierra Leone and the State Court of Bosnia Herzegovina, which comprised a majority of international judges and prosecutors that eventually transformed into a purely domestic court.[2]

We also urge your government to seek international expert advice on the establishment of a national authority following the passage of the Victim and Witness Protection Bill. As your government proceeds towards delivering justice, it is critical that the safety and well-being of all victims and witnesses is given the highest priority.

Recommendations

In conclusion, to address the above issues, we urge you and your government take the following measures:

• Act to eliminate the use of torture and other ill-treatment by police against criminal suspects.  Improve redress mechanisms for victims of torture.
• Investigate and appropriately prosecute those responsible for incitement of violence against religious minority communities and law enforcement officials who fail to stop it. Send an unequivocal message that communal violence will not be tolerated.
• Investigate and appropriately prosecute those who have committed threats and attacks against members of civil society and the media.
• Repeal the Prevention of Terrorism Act. Ensure that those detained under the PTA are promptly released unless charged with a credible offense. Take all necessary steps to end the use of torture, including by eliminating all unofficial detention centers and prosecuting those responsible.
• Increase consultations with civil society organizations on a broad range of human rights issues to consolidate and expand upon recent improvements.
• Seek visits and assistance from United Nations technical and expert bodies to address human rights concerns.
• Make public past reports of Sri Lanka’s various commissions of inquiry; ensure the August 2015 release of the pending Disappearances Commission report.
• End the practice of returning refugees and asylum seekers to places where they have a reasonable fear of persecution.
• Establish a special hybrid international-domestic court to prosecute those on both sides responsible for serious violations of international law.
• Put in place a victim and witness protection program that complies with international best practice.

Thank you for your consideration. We look forward to discussing these and other human rights issues in greater detail with you and members of your government.

Sincerely,

Kenneth Roth
Executive Director
Human Rights Watch