President Siresena’s claims of reform needs to be assessed against reality.

By Together Against Genocide (TAG), Thursday, November 17 2016

Over the weekend Sri Lankan President Siresena said:

The international community is so satisfied with my performance that they have completely changed their impression of the country. Now there is no threat of international courts... It was essential for the country to ensure [protection of] human rights, democratic rights, fundamental rights and the freedom of the people. I have ensured that people get these rights, I have succeeded in doing that as President.

Rhetoric, both international and domestic needs to be assessed against reality.

While reports do indicate a reduction of the visibility of soldiers in the North, militarization of daily civilian life in Tamil areas continues. The East is still heavily militarized. Victims and perpetrators continue to co-exist in the same space. See PEARL's report on the repression of memorialisaion in Sri Lanka and the Army's commemoratory walk in Jaffna (Nov). The military run pre-schools, hotels, ‘help’ in Temples and hospitals and organise Buddhist festivals, by way of example. Surveillance is all pervasive and increasingly delegated to paramilitaries and military men in plain clothes.  

Below is a summary of recent events which run counter to President Siresena’s claims of reform.
The Office of the UN High Commissioner For Human Rights’ Investigation on Sri Lanka (OISL) report represents a broad international consensus on the necessary post war reform. Hence we have looked to the 33 OISL recommendations to assess progress. The 2015 Sri Lanka co-sponsored HRC Resolution 30-1 contains 19 recommendations and incorporates by reference the OISL recommendations.
1. Siresena confirms impunity for perpatrators of war crimes
In October Siresena said the new government is committed to protect the honour and dignity of the "War Heroes".
The nod to the military figures accused of atrocities during the war raises questions of his commitment to pursuing transitional justice and good will.
Recommendation 9 OISL: Adopt specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, including sexual crimes and crimes committed against children, with its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme.  Resource the court so that it can effectively try those responsible;
2. State security apparatus continues to practice torture
In November the Sri Lankan Human Rights Commission’s confirmed long-held suspicions of the use of secret detention cells by Sri Lankan police.  The Human Rights Commission in its submission to the UN Committee Against Torture also recognised the routine use of torture, especially in police detention. It has received 420 formal complaints in 2015 and 208 so far this year.
Recommendation 9 OISL: Issue clear, public and unequivocal instructions to all branches of the military and security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible, either directly or as commander or superior, will be investigated and punished. Subject to due process, anyone suspected of being involved in such acts should be immediately suspended until an effective investigation has been completed.
3. Office of Missing Persons is a website. No mandate for criminal or civil liability
In November a diplomat involved in monitoring the progress of Resolution 30-1 told TAG that not one missing person has yet been found or investigated.
In May 2015 Sri Lanka ratified the International Convention for the Protection of All Persons from Enforced Disappearance (Recommendation 19). In August Sri Lanka's Parliament approved a bill to set up the Office of Missing Persons (OMP). There was no widespread consultation with families of the missing in setting up this office as per Recommendation 25. The office of the missing will not establish any sort of criminal or civil liability.

In August Siresena appeased those in opposition to the creation of the office by saying it is not intended to betray the security forces.  He said that it will give redress to those affected but not punish anyone.

Apart from a website which is hard to find, there has been no confirmation that the OMP has started operating. The lack of consultation with the family of the disappeared does very little to promote confidence or goodwill on the part of the President’s initiative. Any truly meaningful transitional justice mechanism will need to include a dialogue with the affected communities.

Recommendation 19 OISL: Ratify the International Convention on the Protection of All Persons from Enforced Disappearances, the Additional Protocols to the Geneva Conventions and the Rome Statute of the International Criminal Court;
Recommendation 25 OISL: Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;

4. Proposed Counter Terrorism Act worse than predecessor
The Counter Terrorism Act  (CTA) is the intended replacement of the Prevention of Terrorism Act (PTA). Human rights observers and lawyers have been quick to respond with concerns when the draft was leaked in November, saying if implemented it will be worse than then PTA.

The draft CTA places little emphasis on the protection of people under arrest. It places few limitations on police obligations to protect people from harm in custody. Additionally, it does not contain adequate safeguards against rape and sexual abuse during interrogation. The obligation on state security authorities to prevent these kinds of abuses – all too familiar in the post-war context – is expressed only through the ambiguous standard of “practicable measures”. This is especially troubling in light of the scope of police powers and an extraordinarily broad definition of terrorism.  Under the CTA advocating for change in a government policy decision may amount to terrorism. In regards to freedom of speech or political assembly, the draft legislation does nothing to promote it.

Recommendation 16 OISL: Initiate a high-level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance Act with a view to their repeal and the formulation of a new national security framework fully complying with international law;

5. Prevention of Terrorism Act continues to be used
There is extensive critique of the PTA which operates within the security sector.  There was belief that Siresena would repeal the PTA and release the political prisoners whose detention the legislation had allowed. But despite co-sponsoring Resolution 30-1 in 2015, nothing has changed.

From Tamil journalist @Garikaalan’s tweets, TAG has noted the following recent incidents

(13 Nov)  A 20 year old youth from Mullaithivu arrested by TID yesterday before;no reason given to parents except a warrant. Suspect taken to Colombo
(11 Nov) Colombo High courts today remanded another 4 persons allegedly involved with 'Aava' gang in Jaffna till Nov 16;all charged under PTA by TID.
(11 Nov) A 20 year old youth from Mullaithivu arrested by TID yesterday before;no reason given to parents except a warrant. Suspect taken to Colombo.
(10 Nov) Update on TID arrests in North; 13 arrests so far including an army personnel & two students held under PTA, 10 complaints lodged to HRC

Resolution 24 OISL: Review all cases of detainees held under the PTA and either release them or immediately bring them to trial.  Review the cases of those convicted under the PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture;
5. Abuse of executive powers
In February 2015 Mrs. Dilrukshi Dias Wickramasinghe was appointed as the new Director General of the Commission to Investigate Allegations of Bribery or Corruption.

In October the President publicly lashed out at the Commission, the Financial Crimes Investigation Division (FCID) and Criminal Investigation Division (CID) for notifying former Defence Secretary Gotabaya Rajapaksa and eight others to appear in court. The commission was looking into claims that the Government had lost Rs. 11.5 billion in revenue as a result of the decision to permit the private security firm Avant Garde to run a floating armoury.

Speaking at a military event, Siresena said he was disgusted at the turn of events. He said a special discussion had been held with the Prime Minister and the Cabinet of Ministers and informed them that if the CID, FCID and Bribery Commission were going to act upon political agendas, then he would be compelled to take action. There was an implication that the Commission was favouring the UNP party of Ranil Wickremasinghe. 

Days later on October 18, head of Sri Lanka‘s anti-corruption body, Dilrukshi Wickramasinghe resigned, without giving reason. But most analysts noted it was a result of Sirsena’s allegations against the commissions nuetrality.  Analysts also observed it was a visible sign that cracks are beginning to show in the unitary government of Siresena’s SLFP and Wickremasinghe’s UNP.
Siresena’s comments need to be viewed within the historical context of successive Sri Lankan Presidents abusing their executive powers.
Recommendation 21 OISL: Carry out a comprehensive mapping of all pending criminal investigations, habeas corpus, and fundamental rights petitions related to serious human rights violations, as well as the findings of all Commissions of Inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment; Initiate prosecutions in all cases in which the Presidential Commission to Investigate Complaints Regarding Missing Persons has identified perpetrators and prima facie evidence;