by International Crisis Group, Belgium, November 13, 2013
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Sri Lanka’s ethnically-exclusive regime continues to close political space and consolidate its power. Recent moves that create a perception of progress have not weakened the power of the president, his family or the military or brought reconciliation, ended human rights abuses or reduced impunity. The Tamil National Alliance (TNA) won a landslide victory in September’s long-awaited northern provincial council elections. Yet, President Mahinda Rajapaksa’s administration is reluctant to allow devolution to begin, preferring to maintain de facto military rule in the north. It faces increasing social and communal pressures elsewhere, too. Journalists, human rights defenders and critics of the government are threatened and censored. With opposition parties weak and fragmented, continued international pressure and action are essential to stem the authoritarian turn and erosion of rule of law, realise the devolution of power promised in the constitution and start a credible investigation of alleged war crimes by government forces and the Tamil Tigers (LTTE).
The long-awaited northern province elections – the result of intense pressure from India, Japan and the U.S. – are welcomed internationally. However, the TNA-controlled council will almost certainly have to battle the president to claim even its limited powers, which can be enjoyed only with central government cooperation. No provincial council has ever been permitted to exercise all powers granted by the constitution’s thirteenth amendment, which established a degree of devolution. The constitutional and legal context is not favourable to the TNA, especially under the current chief justice, appointed after his predecessor was unconstitutionally dismissed in January 2013. The TNA will also be under pressure from a restive Tamil constituency that was wooed during the campaign with strongly nationalist, sometimes pro-Tamil Tigers statements but is sceptical the council offers northern Tamils real power. For the election to be a meaningful step toward resolving the ethnic conflict, Colombo would have to abandon its hostility to devolution and reverse its policy of militarisation, centralised control and creeping Sinhalisation of the north.
To succeed, the northern provincial council requires financial, technical and political support from the international community. India, the U.S. and other influential governments should make clear to Colombo that diplomatic pressure will intensify if it pushes through constitutional changes that weaken or eliminate provincial councils. Working with multilateral development agencies, those governments should aim to prevent further regression through state- and military-assisted demographic change in the north and east.
Devolution in the north is unlikely to make real progress while the rest of the country suffers from democratic deficit. The TNA would do well to frame its struggle for demilitarisation, security and democratic rights in both the north and east in ways that resonate with growing unhappiness elsewhere at how Sri Lanka is being governed. Increasing numbers of Sinhalese are questioning the high cost of living, corruption, economic mismanagement, land grabs and apparently politically-connected violence. Faced with popular discontent and protests on a range of social and economic issues, the government has frequently responded with repression and violence, using the Prevention of Terrorism Act to jail critics and the army to attack protesters. This has led to unprecedented public criticism of the army, police and ruling family. There is also evidence of serious discontent within the president’s own party and cabinet.
The government has given tacit – at times explicit – support for militant Buddhist attacks on mosques, as well as Muslim businesses and cultural practices. These have continued with impunity for almost two years. Many believe leaders use fear of “Muslim extremism” to shore up Sinhalese support. Despite occasional tensions, the two communities have traditionally maintained cordial relations. Violence against Christian churches and worshippers also appears to be on the rise in 2013, with no serious government efforts to prevent or punish attacks.
Prior to the late August visit to Sri Lanka by the UN High Commissioner for Human Rights, the government announced legal and administrative moves to address some of the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC) and the UN Human Rights Council’s March 2013 resolution on reconciliation and accountability. These have been too weak to help restore the independence of the judiciary or police, curb militarisation or ensure accountability for alleged war crimes. If anything, institutionalised impunity has increased, and power remains firmly concentrated with the president and his family.
Participants should use the November 2013 meeting of Commonwealth leaders in Colombo (CHOGM) to press the Sri Lankan government to address human rights abuses, prevent attacks on religious minorities and restore the independence of the judiciary. Leaders should also publicly insist on a credible process of accountability for end-of-war events and a political solution built on deepened devolution of power within a united Sri Lanka. UN Human Rights Council members should begin designing an international mechanism empowered to investigate the many credible allegations of violations of international law by both sides in the civil war and to monitor continuing human rights violations and attacks on the rule of law.
The government’s policies have badly damaged the rule of law and democracy, undermined the rights of Tamils, Muslims and Sinhalese alike and rendered all Sri Lankans insecure. If it continues to close off avenues of peaceful change, the risks of violent reaction will grow. International vigilance and pressure are essential to keep the situation from getting worse.
To support establishment of an effective northern provincial council and lay the groundwork for more substantial devolution of power
To the government of Sri Lanka:
1. Support establishment of an effective northern provincial council by:
a) giving it an adequate budget and allowing it to receive international development assistance through the national treasury;
b) refraining from using the president’s and governor’s powers to block or delay enabling legislation for council ministries;
c) appointing a provincial governor who has the council’s confidence and a provincial chief secretary chosen by its majority, and ensuring that the provincial administration is adequately staffed with competent professionals; and
d) establishing the national land commission, or similar mechanism, to lead an inclusive national dialogue on land use and land rights.
2. Reduce the number of troops and military camps in the northern province, remove the military from involvement in civilian administration and return all arbitrarily seized land.
3. Implement the thirteenth amendment fully and abandon plans to reduce provincial powers and resume talks with the TNA on constitutional reforms for meaningful self-rule in the north and east, with adequate protections for Muslims and Sinhalese.
To the Tamil National Alliance (TNA):
4. Establish and develop the northern provincial council’s credibility carefully and professionally by:
a) passing the necessary legislation needed to establish its full powers under the thirteenth amendment;
b) appointing qualified personnel to the provincial administration and arranging training for its administrators and council members of all parties, including in drafting legislation and overseeing the provincial administration;
c) inviting UN agencies to assist in conducting a humanitarian and early recovery needs assessment in the north and to collaborate on other ways of meeting the northern population’s needs;
d) preparing with international development agencies and the central government constitutionally permissible ways to receive donor financial aid; and
e) conducting surveys of land use and ownership; the number and extent of army camps; reported population movements and demographic changes along the edges of the northern province; and the extent of psycho-social needs and war-induced trauma.
5. Continue to pursue significant constitutional reform, within the framework of a united Sri Lanka, to ensure meaningful self-rule for Tamil-speaking communities in the north and east, with adequate protections for Muslims and Sinhalese.
6. Work with Muslim community and political leaders in the north and east to develop cooperative, inclusive procedures for mediating land disputes, taking into account the rights of displaced northern Muslims; and to develop common positions on constitutional reforms for meaningful devolution of power.
To the United National Party (UNP):
7. Encourage the government publicly to cooperate with the northern provincial council in establishing its full range of thirteenth amendment powers and to re-enter bilateral negotiations with the TNA for more extensive devolution.
To bilateral and multilateral development agencies:
8. Begin discussions with the central and provincial governments on constitutionally appropriate ways of providing development assistance to the northern council and establishing project-based partnerships with provincial ministries.
9. Establish a donor working group on the north and east to coordinate capacity-building assistance to the provincial councils and administration, beginning with a comprehensive needs assessment for the north.
To end impunity and restore the rule of law and democratic institutions
To the government of Sri Lanka:
10. Cease all support for anti-Muslim and anti-Christian harassment and give clear instructions to the police to prevent and punish any threats or violent attacks.
11. Reestablish an autonomous constitutional council to appoint senior judges, the attorney general and independent commissions on police, human rights, judicial services, public services and bribery.
12. Reestablish the attorney general’s independence and create an independent public prosecutor to conduct credible investigations into enforced disappearances and violations of international humanitarian law by government forces and the LTTE from 2006 to 2009.
13. File indictments in a high court for those responsible for the “Trinco Five” killings in 2006 and other cases of apparently extrajudicial killings.
14. Publish the reports of the Udalagama commission of inquiry into serious human rights violations and implement the major recommendations of previous commissions on enforced disappearances.
To the UNP, TNA, Sri Lanka Muslim Congress (SLMC), Janatha Vimukthi Peramuna (JVP) and Democratic Party:
15. Campaign for reestablishment of an autonomous constitutional council to appoint senior judges and independent public commissions and for creation of an independent public prosecutor tasked to investigate serious human rights violations, including of international humanitarian law and enforced disappearances.
To the Commonwealth member states:
16. Use the Heads of Government Meeting (CHOGM) to raise concerns about the government’s attack on judicial independence, growing authoritarianism and failure to investigate alleged war crimes; prevent Sri Lanka from serving as the chair-in-office for the next two years; and request the secretary general to terminate his good-offices initiatives.
To the UN Human Rights Council (UNHRC) member states:
17. Lay the groundwork to establish at the March 2014 session, if the government is unable to demonstrate progress, a strong international mechanism empowered to investigate credible allegations of violations of international law by both sides in the civil war and to monitor continuing human rights violations and attacks on the rule of law.