EXECUTIVE
SUMMARY AND RECOMMENDATIONS
Asia Report N°24320 Feb 2013

Government
attacks on the judiciary and political dissent have accelerated Sri Lanka’s
authoritarian turn and threaten long-term stability and peace. The government’s
politically motivated impeachment of the chief justice reveals both its
intolerance of dissent and the weakness of the political opposition. By
incapacitating the last institutional check on the executive, the government has
crossed a threshold into new and dangerous terrain, threatening prospects for
the eventual peaceful transfer of power through free and fair elections. Strong
international action should begin with Sri Lanka’s immediate referral to the
Commonwealth Ministerial Action Group (CMAG) and a new resolution from the UN
Human Rights Council (HRC) calling for concrete, time-bound actions to restore
the rule of law, investigate rights abuses and alleged war crimes by government
forces and the Liberation Tigers of Tamil Eelam (LTTE), and devolve power to
Tamil and Muslim areas of the north and east.
Sri
Lanka is faced with two worsening and inter-connected governance crises. The
dismantling of the independent judiciary and other democratic checks on the
executive and military will inevitably feed the growing ethnic tension resulting
from the absence of power sharing and the denial of minority rights. Both crises
have deepened with the Rajapaksa government’s refusal to comply with the HRC’s
March 2012 resolution on reconciliation and accountability. While the government
claims to have implemented many of the recommendations of its Lessons Learnt and
Reconciliation Commission (LLRC) – a key demand of the HRC’s resolution – there
has in fact been no meaningful progress on the most critical issues:
- the
government has conducted no credible investigations into allegations of war
crimes, disappearances or other serious human rights violations;
- rather
than establish independent institutions for oversight and investigation, the
government has in effect removed the last remnants of judicial independence
through the impeachment of the chief justice;
- there
has been no progress toward a lasting and fair constitutional settlement of the
ethnic conflict through devolution of power;
- the
military still controls virtually all aspects of life in the north, intimidating
and sidelining the civilian administration;
- more
than 90,000 people remain displaced in the north and east, amid continued land
seizures by the military, with no effective right of appeal and no fair process
for handling land disputes;
- government
security forces have broken up peaceful Tamil protests in the north, detained
students on questionable charges of working with the LTTE and actively harassed
Tamil politicians;
- the
government has responded with force to protest and dissent in the south, too,
deploying troops to prevent the newly impeached chief justice and supporters
from visiting the Supreme Court while pro-government groups attacked lawyers
protesting the impeachment.
Analysts
and government critics have warned of Sri Lanka’s growing authoritarianism since
the final years of the civil war, but developments over the last year have
worsened the situation. The president’s willingness and ability to push through
the impeachment – in the face of contrary court rulings, unprecedented
opposition from civil society and serious international concern – confirms his
commanding political position. The move completes the “constitutional coup”
initiated in September 2010 by the eighteenth amendment, which removed
presidential term limits and the independence of government oversight bodies. It
has sent a clear message to domestic critics that their dissent is
unwelcome.
The
consolidation of power paves the way for moves that could further set back
chances of sustainable peace. The president and his two most powerful brothers –
Defence Secretary Gotabaya and Economic Development Minister Basil – have
signalled their intention to weaken or repeal the provinces’ already minimal
powers. As the government makes explicit its hostility to meaningful power
sharing between the centre and the Tamil-speaking north and east, Tamil identity
and political power are being systematically undermined by the military-led
political and economic transformation of the northern province.
Recent
months have also seen an upsurge in attacks by militant Buddhists on Muslim
religious sites and businesses. The government has done little to discourage
these. Should such provocations continue, the remarkable moderation of Sri
Lanka’s Muslims could face serious tests. Given the country’s history of violent
resistance to state power perceived as unjust, the authoritarian drift can only
increase the risk of an eventual outbreak of political violence.
Sri
Lankans of all ethnicities who have struggled to preserve their democracy
deserve stronger international support. The HRC’s 2012 resolution was an
important first step, but more is needed. This should begin with a stronger HRC
resolution in March 2013, which must demand concrete reforms to end impunity and
restore the rule of law; mandate the Office of the High Commissioner for Human
Rights (OHCHR) to monitor violations and investigate the many credible
allegations of war crimes committed in the final months of the war by both
sides; and, where possible, identify individuals most responsible.
The
Commonwealth secretary general should formally refer Sri Lanka to the
Commonwealth Ministerial Action Group (CMAG), which should insist that the
government take substantial steps to restore the independence of the judiciary.
Were it to refuse, the Commonwealth should relocate its November 2013 heads of
government meeting, currently scheduled to take place in Colombo, or at the very
least participants should downgrade their representation.
All
governments and multilateral institutions with active ties to Sri Lanka must
rethink their approach and review their programs in light of Colombo’s deepening
and dangerous authoritarian drift. This includes military-to-military relations
and bilateral and multilateral development assistance, including from the UN,
World Bank, Asian Development Bank and International Monetary Fund.
RECOMMENDATIONS
To
the government of Sri Lanka:
1.
Comply with current and future HRC resolutions, including by implementing the
core recommendations of the LLRC on governance, the rule of law, accountability,
devolution of power and reconciliation, through a process that includes
opposition political parties and independent civil society representatives of
all ethnic communities.
2.
Support meaningful reconciliation by publishing the full LLRC report in
Sinhala and Tamil, allowing the national anthem to be sung in Tamil at official
events and holding public ceremonies to honour the death and suffering of
civilians from all communities.
To
the UN Human Rights Council (HRC):
3.
Adopt a new, stronger resolution on Sri Lanka at its 22nd session, which:
a)
notes clearly the government’s refusal to respect the previous resolution by
failing to implement the most important LLRC recommendations and refusing to
investigate credibly allegations of grave violations of international
humanitarian law;
b)
details specific measures the government must take within the coming
year;
c)
requests the government to investigate independently the credible allegations of
international humanitarian law violations;
d)
tasks OHCHR with monitoring and reporting to the council on progress in
implementing the resolution and on any violations, and with undertaking
investigations and making appropriate recommendations with respect to violations
allegedly committed in the final months of the war, including by compiling a
list of individuals about whom there is credible evidence.
e)
encourages the government to invite those special rapporteurs with outstanding
requests to visit Sri Lanka, and requests them to compile a joint report on the
country’s compliance with its international obligations.
To
the Commonwealth Secretariat and member states:
4.
Refer Sri Lanka to the Commonwealth Ministerial Action Group (CMAG), which
should insist that the government take substantial steps to restore the
independence of the judiciary, including, at a minimum, by:
a)
reestablishing earlier constitutional provisions – abolished by the eighteenth
amendment – to ensure a less politicised selection of judges;
b)
changing current parliamentary provisions for removing senior judges to bring
them in line with international standards; and
c)
abandoning government plans to limit a chief justice’s term to three
years.
5.
Relocate, should the government fail to make these changes, the November 2013
heads of government meeting away from Colombo, or downgrade representation to
ministerial level.
To
the UN Secretary-General:
6.
Use his powers under section 99 of the UN Charter to establish a commission of
inquiry into alleged violations of international law, should the HRC decline to
do so or to task OHCHR to undertake investigations.
7.
Establish a mechanism to “monitor and assess the extent to which the Government
of Sri Lanka is carrying out an effective domestic accountability
process”.
To
the UN Secretariat, country team and agencies in Sri Lanka:
8.
Undertake a “human rights audit”, led by the country team, of all programming to
examine where and how these can better integrate human rights protection,
including a survey of the protection needs of past and present humanitarian
workers, both in and out of Sri Lanka.
9.
Review Sri Lanka’s contributions to peacekeeping operations and reject its
participation until credible investigations of war crimes allegations and
prosecutions are carried out.
To
the governments of India, the U.S., EU, UK, Cana