HRW Writes to President Maithripala on

Human Rights in Sri Lanka

[The Free Media Movement of Sri Lanka presents its proposals for Media Reform to the President]

27/02/2015
HRW says that 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 governments unwillingness to tackle issues of accountability.
The letter of the HRW follows:
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 conflictrelated abuses by government security forces. Throughout we have always worked
closely with Sri Lankas community of human rights advocates.
We welcome some initiatives your government has already undertaken, such as caseby-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 governments
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 countrys 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 Lankas 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 Wickrematunge 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
Lankas long civil armed conflict, it is even more so since the conflicts 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. 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 Lankas 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 Raad 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.
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 Lankas 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
Posted by Thavam