SRI LANKA: STATE of HUMAN RIGHTS 2018 This Report Covers

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SRI LANKA: STATE OF HUMAN RIGHTS 2018

This report covers the period January to December 2017

LAW & SOCIETY TRUST 3, Kynsey Terrace Colombo 8 Sri Lanka © Law & Society Trust 2019

Assigned articles represent the view of the respective author, and are not necessarily those of their affiliated institution or employer, other contributors to this volume, nor of the Law & Society Trust.

ISBN: 978-955-1302-82-5

ii CONTENTS

CONTRIBUTORS ix REVIEWERS x ABBREVIATIONS & ACRONYMS xii INTRODUCTION

PART I – HISTORICAL SECTION

I. OVERVIEW 1. Introduction 01 2. Twenty-five Years of Human Rights Reporting 05 2.1 The ethnic conflict 05 2.2 Impunity, extrajudicial killings, disappearances, 08 and arbitrary arrests and detention 2.3 Torture 13 2.4 Emergency rule 14 2.5 Internally displaced persons (IDPs) 15 2.6 Rights of children and child soldiers 16 2.7 Attacks on the right to vote and democratic 18 processes 2.8 Women’s rights, sexual violence and war widows 19 2.9 Ceasefire, MOU and peace talks 21 2.10 Political climate and the decline in human 24 rights protection in the country 03. International Treaties and Scrutiny of the 29 International Community

iii 04. Tsunami and its Aftermath 37 05. Attacks on the Media and Media Personnel 39 06. Attacks on Minorities and Human Rights Defenders 42 07. Upcountry Tamils 44 08. Consensus Building 46 09. The Role of the Supreme Court 52 10. Positive Steps 56 11. Overview of Events in 2017 60 12. Conclusion 63

II. CIVIL WAR, WAR ENDING, AND DILEMMAS OF PEACE BUILDING IN SRI LANKA, 1983-2017

01. Introduction 67 02. Background 70 03. Civil War –Formation and Escalation 71 04. Efforts at Negotiated Settlement to War 73 05. Politics of War and Peace during Civil War: 87 Patterns and Trends 06. The End of War and the Contentious Politics of 90 Peace 07. Return and Retreat of Liberal Peace Building: 96 2015 and After 7.1 Transitional justice 102 7.2 Constitutional reform 105 08. Conclusion 106

iv PART II- REVIEW SECTION

III. JUDICIAL PROTECTION OF FUNDAMENTAL RIGHTS

01. Introduction 109 02. International Human Rights Law 111 03. Right to Equality 115 3.1 Review of administrative action 115 3.2 School admissions 116 3.3 Forfeiture of property rights 118 3.4 Laws delays 118 3.5 Local authority elections 119 04. Right to be Free from Torture 120 05. Right to be Free from Arbitrary Arrests 125 06. Environmental Justice 126 07. Right to Information 127 08. Public Functions Test 128 09. Epistolary Jurisdiction 129 10. Standing 130 11. Time-bar 131 12. Reliance on International Human Rights Law, 133 Foreign Judgments 13. Compensation 135 14. The Duration of Proceedings 136 15. Conclusion 137

v IV. INTERNATIONAL MONITORING OF HUMAN RIGHTS IN SRI LANKA 2017

01. Introduction 139 02. Sri Lanka’s History of Commitments to International 146 Human Rights Framework in Recent Years 03. Responding to International Treaty Bodies in 2017 155 3.1 Economic rights 155 3.2 Right to health 160 3.3 Prevention of Terrorism Act 161 3.4 Right to education 162 3.5 Non-discrimination 163 3.6 Language rights and cultural rights 169 3.7 Freedom of religion 170 3.8 Women’s rights 171 3.9 Children’s rights 175 3.10 Freedom from torture and extra judicial 175 executions 3.11 Transitional justice 177 04 Conclusion 179

vi V. OLD WINE IN NEW BOTTLES: RETURNING OF OLD AUTHORITARIANISM IN THE NEO- LIBERAL ERA AND HUMAN RIGHTS

01. Introduction 181 02. Paradigm Shift in Labour? 183 03. Three Labour Struggles 185 04. Precarious Labour and Labour Struggles 188 4.1 Organized power of the workers or the 191 political affiliations? 4.2 Neoliberalism and old authoritarianism 195 05. Which is Central: National Security or Human 199 Security? 06. Empathy and Solidarity 202 07. Looking Beyond 2017… 205

VI. HUMAN RIGHTS AND INCOME TAX IN SRI LANKA

01. Introduction 207 02. The Right to Information 210 03. The Rule of Law 213 04. Legality 220 05. Consistency and Certainty 223 06. Accountability 224 07. Efficiency 225 08. Due Process and Access to Justice 226

vii 09. Interest, Penalties and Charges 233 10. Conclusion 234

Schedule I 237 UN Conventions on Human Rights Environmental treaties & International Conventions on Terrorism signed, ratified or acceded to by Sri Lanka as at 31st December 2017

Schedule II 242 ILO Conventions Ratified by Sri Lanka as at 31 December 2017

Schedule III 246 Humanitarian Law Conventions Ratified by Sri Lanka as at 31st December 2017

Schedule IV 247 Some Human Rights and Humanitarian Instruments NOT Ratified by Sri Lanka as at 31st December 2017

Schedule V 250 Fundamental Rights Cases Decided During the Year 2017 referred to in the report

Bibliography 253 Index 265

viii CONTRIBUTORS

Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 Years Dr Sumudu Atapattu

Civil War, War Ending, and Dilemmas of Peace Building in Sri Lanka, 1983-2017 Professor Jayadeva Uyangoda

Judicial Protection of Fundamental Rights Dr Dinesha Samararatne

International Monitoring of Human Rights in Sri Lanka Dinushika Dissanayake

Old Wine in New Bottles: Returning of old Authoritarianism in the Neo-Liberal Era and Human Rights Vidura Prabath Munasinghe & Ishan Chamara Batawalage

Human Rights and Income Tax in Sri Lanka Dr Shivaji Felix

ix REVIEWERS

Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 Years Dr Mario Gomez

Civil War, War Ending, and Dilemmas of Peace Building in Sri Lanka, 1983-2017 Dr Alan Keenan

Judicial Protection of Fundamental Rights Dr Sumudu Atapattu

International Monitoring of Human Rights in Sri Lanka – 2017 Dr Sumudu Atapattu & Dr Kalana Senaratne

Old Wine in New Bottles: Returning of old Authoritarianism in the Neo-Liberal Era and Human Rights Dr Sumudu Atapattu

Human Rights and Income Tax in Sri Lanka Dr Sumudu Atapattu

x RESOURCE TEAM

Editor Dr Sumudu Atapattu

Resource Team Dr Sakuntala Kadirgamar Sandun Thudugala Oliver Friedmann Prasanna Gajaweera Janaki Dharmasena Dilani Wickramasinghe Amalini De Sayrah Dilhara Pathirana

Cover Design Gabrielle Philips

xi ABBREVIATIONS & ACRONYMS

ABM Associated Battery Manufactures AG Attorney-General AI Amnesty International APRC All Party Representative Conference CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CED Committee on Enforced Disappearances CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social & Cultural Rights CIFC Colombo International Financial City CMEV Center for Monitoring Election Violence ICRMW International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families CMW Committee on Migrant Workers COI Commission of Inquiry CPA Centre for Policy Alternatives CRC Convention on the Rights of the Child CRPD Committee on the Rights of Persons with Disabilities ICRPD International Convention on the Rights of Persons with Disabilities CTF Consultative Task Force on Reconciliation EPDP Eelam People’s Democratic Party EU European Union FR Fundamental Rights

xii HRC Human Rights Council HRCSL Human Rights Commission of Sri Lanka HRTF Human Rights Task Force ICCPR International Covenant on Civil and Political Rights ICERD International Covenant on the Elimination of All Forms of Racial Discrimination ICES International Centre for Ethnic Studies ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Commission of Jurists ICPED International Convention for the Protection of All Persons from Enforced Disappearance IDPs Internally Displaced Persons JHU Jathika Hela Urumaya (National Sinhalese Heritage Party) JSC Judicial Services Commission JVP Janatha Vimukthi Peraumuna (People’s Liberation Front) LLRC Lessons Learnt and Reconciliation Commission LST Law & Society Trust LTTE Liberation Tigers of Tamil Eelam MOU Memorandum of Understanding NGOs Non-Governmental Organisations NPC National Police Commission OHCHR Office of the United Nations High Commissioner for Human Rights OMP Office of Missing Persons ONUR Office of National Unity and Reconciliation PA People’s Alliance PLOTE People’s Liberation Organization of Tamil Eelam

xiii PSO Public Security Ordinance PTA Prevention of Terrorism Act SC Supreme Court SGI Sub-Committee on Gender Issues SLFP Sri Lanka Freedom Party SLMC Sri Lanka Muslim Congress SLMM Sri Lanka Monitoring Mission SLT Sri Lanka Telecom SPT Subcommittee on Prevention of Torture TID Terrorist Investigation Department TNA Tamil National Alliance TULF Tamil United Liberation Front UDHR Universal Declaration of Human Rights UN United Nations UNDP United Nations Development Programme UNHCHR UN High Commissioner for Human Rights UNHCR United Nations High Commissioner for Refugees (Also known as the UN Refugee Agency) UNHRC United Nations Human Rights Council UNICEF United Nations International Children’s Emergency Fund UNP United National Party UPFA United Peoples’ Freedom Alliance UPR Universal Periodic Review

xiv FOREWORD

In 2018, the Sri Lanka: State of Human Rights Report (SHR) marks its 25th anniversary since it was first published in 1993. Thus for a quarter century the SHR has been used by researchers, academics, human rights activists and students of human rights and law to determine Sri Lanka’s compliance with international human rights standards and norms thereby comparing the country’s performance in the light of these international norms in the application of its domestic law, policy and practices.

This landmark publication, spearheaded by the late Dr Neelan Tiruchelvam, himself a victim of the ethnic conflict that defined human rights in the country, was an important watershed in the history of human rights protection in Sri Lanka. Prior to its publication, there was no document that systematically surveyed the state of human rights in the country against its international commitments.

The SHR 2018 is divided into two main sections; the Historical section and the Review section. The Overview and Civil War, War Ending, and Dilemmas of Peace Building in Sri Lanka, 1983-2017 are historical in nature and look at events, processes and human rights issues debated and discussed from as far back as 1983.

Judiciary Interpretation of Fundamental Rights, International Monitoring of Human Rights 2017, Old Wine in New Bottles: Returning of Old Authoritarianism in the Neo-Liberal Era and Human Rights and Income Tax in Sri Lanka, fall under the Review section following the SHR format of previous years which describes and analyses the human rights situation of the preceding year and thus mainly limits its scope to a period of one year.

OVERVIEW OF THE SRI LANKA STATE OF HUMAN RIGHTS, 2018: REMINISCING THE PAST 25 YEARS

Sumudu Atapattu*

1. Introduction The year 2018 marks the 70th anniversary of the Universal Declaration of Human Rights, the historic document that formed the foundation of international human rights law. As the international community celebrates this watershed moment, the Law & Society Trust is gearing up to celebrate its own milestone — the 25th anniversary of the Sri Lanka: State of Human Rights report.

This important publication spearheaded by the late Dr, Neelan Tiruchelvam — himself a victim of the ethnic conflict that defined human rights in the country — was an important watershed in the history of human rights protection in Sri Lanka. Before its publication, there was no document that systematically surveyed

* Director, Research Centers and International Programs, University of Wisconsin Law School & Executive Director Wisconsin Law School and Executive Director, Human Rights Program, University of Wisconsin- Madison. The author would like to thank Dilhara Pathirana and especially Oliver Friedmann for their assistance with the Overview.

OVERVIEW OF THE SRI LANKA STATE OF HUMAN RIGHTS, 2018: REMINISCING THE PAST 25 YEARS

Sumudu Atapattu*

However, it was also a lot of fun. We would get down “wade” for Sri Lanka: State of Human Rights dinner, call home to say that we were getting late, and settle down for a long night of wor over many cups of tea. With ust one computer to do all the corrections and formatting, finalising the This report represents an important watershed with regard to human document was uite a herculean tas. he computer would freee rights in Sri Lanka. This is the first attempt at an annual review of many times. he printer would refuse to print anymore. inally, human rights in Sri Lanka undertaken by concerned human rights ehausted, we would head home — after the final printout was activists and scholars. This report is consequent to an initiative by taen — only to return the net day for the official presentation INFORM, Nadesan Centre for the Study of Human Rights and ceremony. the Law and Society Trust However, getting the report ready for the official ceremony was only the first step. We still had to get the report ready for pulication. his was a huge tas as none of the authors had een given a style guide. When oined S in ay , the report was in full swing. ven though was supposed to run the aw and conomy rogram, too it upon myself to mae the — report ready for pulication. s no style guide had een given, this was uite a tas. ittle issues lie punctuations, numers and the footnote style consumed us. We wanted to mae sure that the chapters were as consistent as possile. rom the net report onwards, we gave a style guide to the authors when we commissioned each chapter which made our lives much easier. While the production of the “SHR” as it was affectionately called y us was “fun”, nothing could conceal the grave human rights very popular savory vegetarian snac in Sri ana. he report was called State of Human Rights as it was looing at events in although the pulication was done in . his led to some confusion so from , the year was changed to the actual year it was produced. s a result, there is a gap in the seuence — from SHR the report umps to SHR with a note to say that it surveys events that too place in .

2 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

3 Sri Lanka: State of Human Rights: 2018

violations taing place in the country. n anuary , the year receied by the goernment. here was a period of openness after oined the S, the omed the entral an in during which the goernment under resident handrika olomo. any lost their lives and so many were maimed for life. umaratunga worked with many human rights s to improe et year, a train carrying hundreds of worers during rush hour the human rights situation in the country. his, howeer, was was omed near ehiwala, a city close to olomo. war was shortlied. waging in the orth and ast etween government forces and the . any places of worship were attaced, including the sacred his oeriew does not attempt to summarise the human rights emple of the ooth in andy and the Sri aha odhi the sacred situation in the country oer the past years. ather, it will o tree considered the oldest tree in the world on record in highlight some significant areas of concern, as well as some nuradhapura. hese attacs were clearly carried out to provoe achieements. n compiling this oeriew, hae used mainly the the majority in the hope they would create another “black July”. oeriews of the past uman ights eports prepared by LS. o ut fortunately, sanity prevailed. independent research was carried out.

he human cost of the war was horrendous. So many young lives 2. Twenty-five Years of Human Rights Reporting were lost on oth sides to the conflict. n Septemer alone, it 2.1. The ethnic conflict is estimated that over , comatants from oth sides were he ethnic conflict that took place predominantly in the orth and illed. n , almost , people were illed. any ast since although the entire country was affected defined “disappeared.” At one point, Sri Lanka had the highest number of the human rights situation in the country. hen parliamentary and disappearances in the world. orture in custody was prevalent as presidential elections were held in 1994 and the People’s Alliance highlighted y the large numer of fundamental rights petitions A and handrika andaranaike umaratunga were elected, it filed in the Supreme ourt. llegal detention for unlimited periods ushered in a period of muchneeded respite from years of of time at undisclosed places was widespread. he list of human authoritarian rule under the nited ational arty . uring rights violations unfortunately went on. oth sides to the conflict this time Sri Lanka witnessed the brutal suppression of the Janatha were guilty of massive human rights violations. he SHR reports Vimukthi Peramuna J which itself was responsible for many acts could not have come at a more opportune time. ecause the of iolence. uman rights came to the forefront of the election reports were done y a Sri anan , and ecause the report campaign. he elections themseles came under the spotlight with used Sri Lanka’s international human rights obligations as a uestions raised about political participation, electionrelated yardstick to measure Sri Lanka’s compliance, the reports were well iolence, misuse of state resources and the media, issues of electoral areas access in L controlled areas and s mnesty nternational, nforced isappearances, eercising their right to ote. wo weeks before the presidential httpswww.amnesty.orgenwhatwedodisappearances .

4 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years violations taing place in the country. n anuary , the year receied by the goernment. here was a period of openness after oined the S, the omed the entral an in during which the goernment under resident handrika olomo. any lost their lives and so many were maimed for life. umaratunga worked with many human rights s to improe et year, a train carrying hundreds of worers during rush hour the human rights situation in the country. his, howeer, was was omed near ehiwala, a city close to olomo. war was shortlied. waging in the orth and ast etween government forces and the . any places of worship were attaced, including the sacred his oeriew does not attempt to summarise the human rights emple of the ooth in andy and the Sri aha odhi the sacred situation in the country oer the past years. ather, it will o tree considered the oldest tree in the world on record in highlight some significant areas of concern, as well as some nuradhapura. hese attacs were clearly carried out to provoe achieements. n compiling this oeriew, hae used mainly the the majority in the hope they would create another “black July”. oeriews of the past uman ights eports prepared by LS. o ut fortunately, sanity prevailed. independent research was carried out.

5 Sri Lanka: State of Human Rights: 2018

election the P presidential candidate aini issanaae and he assassination o r eelan irchela P — the onder oer others were illed a sicide oer at an election rall o and and partner o irchela ssociates — a he was the ain sspect or the attac althoh it neer sicide oer in l 1999 dealt a seere low to not st claied responsiilit and this reinded eerod how raile the three instittions he headed t to the entire han rihts the sitation was he new oernent aced an challenes t conit in ri ana strled to recoer and een now iproin the han rihts sitation in the contr was a priorit — 19 ears later — it is still hard to coe to ters with this traed is ision his intellect and aoe all his hilit is sorel he P oernent ean tals with the soon ater coin issed r irchela was worin on a constittional soltion to power and oth parties areed to a cessation o hostilities in to the ethnic conlict with the oernent when he was anar 199 inorit rihts lanae rihts and non assassinated e was an ardent crsader or the rihts o ail discriination especiall in relation to edcation eploent and ciilians and it is ironic that he was illed the er oranisation access to health ecae contentios isses oweer the retrn that was claiin to iht or the rihts o the ail inorit t to hostilities in pril 199 aain led to the tihtenin o secrit too a lon tie or to coe ac to soe selance o easres throhot the contr and in trn led to an han noralc and in an respects it neer recoered ro this sad rihts iolations incldin aritrar arrests and detention tortre and senseless illin t the sae tie ade a reat eort not and disappearances to ie into terroris and to contine the proects spearheaded r irchela incldin the ithot his direction and he conlict intensiied in 199 leadin to a lare ner o Ps leadership howeer strled to ind its ootin and no other in addition to those who were alread displaced he an rape and person was ale to ill the oid created his ntiel deise rder o rishanthi araswa and the sseent rder 19 will ar his th death anniersar and it is an o her other rother and neihor secrit orces led to nderstateent that we reatl iss hi widespread condenation oth nationall and internationall oernent responded switl hihlihtin the iportance o an isses that were dear to his heart were discssed relarl in plic oilisation and attention here was a ared rise in the the report he topics inclded eerenc rle dicial protection ner o disappearances particlarl on the ana peninsla of human rights, integrity of the person, IDPs, women’s rights, children’s rights, torture, and freedom of expression. For the first ttacs on ciilians the contined wo o the ost tie carried a critical eaination o the han rihts horrendos acts were the oin o the entral an in instittions in ri ana the an ihts oission the oloo which illed oer 9 people and inred an ore and dsan the icial anaes oission and the the oin o a crowded coter train in the sothern sr oission on rier and orrption n addition the o oloo which illed people and inred an ore report eained the iplications o an ain poplation and

6 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years election the P presidential candidate aini issanaae and he assassination o r eelan irchela P — the onder oer others were illed a sicide oer at an election rall o and and partner o irchela ssociates — a he was the ain sspect or the attac althoh it neer sicide oer in l 1999 dealt a seere low to not st claied responsiilit and this reinded eerod how raile the three instittions he headed t to the entire han rihts the sitation was he new oernent aced an challenes t conit in ri ana strled to recoer and een now iproin the han rihts sitation in the contr was a priorit — 19 ears later — it is still hard to coe to ters with this traed is ision his intellect and aoe all his hilit is sorel he P oernent ean tals with the soon ater coin issed r irchela was worin on a constittional soltion to power and oth parties areed to a cessation o hostilities in to the ethnic conlict with the oernent when he was anar 199 inorit rihts lanae rihts and non assassinated e was an ardent crsader or the rihts o ail discriination especiall in relation to edcation eploent and ciilians and it is ironic that he was illed the er oranisation access to health ecae contentios isses oweer the retrn that was claiin to iht or the rihts o the ail inorit t to hostilities in pril 199 aain led to the tihtenin o secrit too a lon tie or to coe ac to soe selance o easres throhot the contr and in trn led to an han noralc and in an respects it neer recoered ro this sad rihts iolations incldin aritrar arrests and detention tortre and senseless illin t the sae tie ade a reat eort not and disappearances to ie into terroris and to contine the proects spearheaded r irchela incldin the ithot his direction and he conlict intensiied in 199 leadin to a lare ner o Ps leadership howeer strled to ind its ootin and no other in addition to those who were alread displaced he an rape and person was ale to ill the oid created his ntiel deise rder o rishanthi araswa and the sseent rder 19 will ar his th death anniersar and it is an o her other rother and neihor secrit orces led to nderstateent that we reatl iss hi widespread condenation oth nationall and internationall oernent responded switl hihlihtin the iportance o an isses that were dear to his heart were discssed relarl in plic oilisation and attention here was a ared rise in the the report he topics inclded eerenc rle dicial protection ner o disappearances particlarl on the ana peninsla of human rights, integrity of the person, IDPs, women’s rights, children’s rights, torture, and freedom of expression. For the first ttacs on ciilians the contined wo o the ost tie carried a critical eaination o the han rihts horrendos acts were the oin o the entral an in instittions in ri ana the an ihts oission the oloo which illed oer 9 people and inred an ore and dsan the icial anaes oission and the the oin o a crowded coter train in the sothern sr oission on rier and orrption n addition the o oloo which illed people and inred an ore report eained the iplications o an ain poplation and

7 Sri Lanka: State of Human Rights: 2018

attacs on democratic practice, including elections. he has also ealuated the human rights of prisoners, plantation worers, persons with disailities, persons with IID, enironmental rights, right to health, and laour rights. he fiftieth anniersary of independence from ritain was celerated y ri ana in amidst the continuing conflict in the orth and ast. Days efore the anniersary and celeration that was due to e held in andy, the emple of the ooth — one of the most sacred places in the country for uddhists — was omed y the . lthough many countries around the world had named the as a terrorist organisation, the ri anan goernment did so only after this oming, anning the under emergency regulations. eedless to say, the ongoing ethnic conflict and the generalised enironment of iolence hae had an impact on democratic processes in the country not ust in the conflict ones ut in other parts of the country as well. lections to local councils in affna were scheduled for anuary . oweer, the ayor of affna Krishanthi Kumaraswamy was assassinated y the and her successor was also illed ust four months later when a om exploded at the allur unicipal ffice in affna. and murder of Krishanthi’s 2.2 Impunity, extrajudicial killings, disappearances, and Munasinghe Arachige Sammy and others arbitrary arrests and detention v. AG)5 ne of the maor issues that the reports consistently discusses is impunity. Despite assurances gien to the uman ights ommission as it was then called the P goernment failed to Somaratne Rajapakse Others v. Hon. Attorney General inestigate past human rights auses. Fulfilling one of its election promises, the P goernment estalished three presidential

8 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years attacs on democratic practice, including elections. he has also ealuated the human rights of prisoners, plantation worers, persons with disailities, persons with IID, enironmental rights, right to health, and laour rights. he fiftieth anniersary of independence from ritain was celerated y ri ana in amidst the continuing conflict in the orth and ast. Days efore the anniersary and celeration that was due to e held in andy, the emple of the ooth — one of the most sacred places in the country for uddhists — was omed y the . lthough many countries around the world had named the as a terrorist organisation, the ri anan goernment did so only after this oming, anning the under emergency regulations. eedless to say, the ongoing ethnic conflict and the generalised enironment of iolence hae had an impact on democratic processes in the country not ust in the conflict ones ut in other parts of the country as well. lections to local councils in affna were scheduled for anuary . oweer, the ayor of affna Krishanthi Kumaraswamy was assassinated y the and her successor was also illed ust four months later when a om exploded at the allur unicipal ffice in affna. and murder of Krishanthi’s 2.2 Impunity, extrajudicial killings, disappearances, and Munasinghe Arachige Sammy and others arbitrary arrests and detention v. AG)5 ne of the maor issues that the reports consistently discusses is impunity. Despite assurances gien to the uman ights ommission as it was then called the P goernment failed to Somaratne Rajapakse Others v. Hon. Attorney General inestigate past human rights auses. Fulfilling one of its election promises, the P goernment estalished three presidential

9 Sri Lanka: State of Human Rights: 2018

in toer here ere seera onerns reatin to this ase of paramiitaries and the impact of the aruna spit and the use of — detention of eoe ithout ein hared for oer one ear civiian proies the in attacs on the ri anan arm. uenies ein hed in the same faiities as aduts and the inaiit he report aso referred to the use of vioence particuar the of the state to rehaiitate former hid sodiers to contro ami civiians. e pointed out that athough the internationa communit wanted to ca on the to aide ose reated area of onern is the forensi eaations of sites human rights standards, it was reuctant to do so direct as that of suspected mass graves of those who had “disappeared”. In 1994, coud e interpreted as treating it ie a state. he report aso a mass rae as found in uriaanda here it as seuated pointed out that there had een a faiure to investigate poitica that the remains of the odies of the shooos ied in the iings, summar eecutions eing carried out the oice and Embilipitiya Abduction and Murder Case ere found aon ith man reports of resurgence of enforced and invountar disappearances others mass rae at hemmani on the affna eninsua here especia of ami outh. t the uman ights ounci session in the remains of hundreds of eoe ho disaeared in ere une , ston again drew attention to the use of aied eieed to e uried as reeaed he reort aed uon the paramilitary groups to carry out the government’s counter oernment to use methods onsistent ith the uideines on insurgenc strateg and to maintain contro in the ast and in the isinterment and nasis of eeta emains in order to Jaffna. It was reported that the Eelam People’s Democratic Part ensure that the eidene is handed in a roer manner and (EPDP) and the People’s Liberation Organization of Tamil Eelam itnesses are adeuate roteted were responsie for unawfu iings and enforced disappearances. The government’s response to the spate of attacks hii ston the eia aorteur on traudiia and iings had een far from satisfactor. It has een sow to ummar or ritrar eutions undertoo a mission to ri conduct investigations and ring perpetrators to ustice. ne ana in at the initation of the oernment n his reort notae incident invoved the nited eopes reedom iance ston foused on oitia iins reatin to the easefire the roe candidate uminda iva shots fired from his vehice ied one person in the crowd. o investigation was carried out and the case was dropped short after. his ase as heard in the atnaura ih ourt in entto shooos from miiitia ere idnaed tortured and a ut three ied sodiers of the ri anan rm he oernment and the ith rtier ccording to the tate epartment, whie reiae statistics on eiment at the time denied the eents unti the defeat in near the numer of disappearances were difficut to otain, estimates fie ears after the adutions too ae i sodiers and the rinia of the shoo the os attended ere sentened to ears imrisonment o hih range etween 4 for the ear 9 with the maorit taing ranin offiias ere auitted he ase aart from its horror reresented pace in the orth and ast. he government noted the need to another eame of the tate faiin to adeuate roseute rimes ommitted estaish one authoritative source of information reating to these memers of its armed fores incidents in its report to the uman ights ounci in and to

10 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years in toer here ere seera onerns reatin to this ase of paramiitaries and the impact of the aruna spit and the use of — detention of eoe ithout ein hared for oer one ear civiian proies the in attacs on the ri anan arm. uenies ein hed in the same faiities as aduts and the inaiit he report aso referred to the use of vioence particuar the of the state to rehaiitate former hid sodiers to contro ami civiians. e pointed out that athough the internationa communit wanted to ca on the to aide ose reated area of onern is the forensi eaations of sites human rights standards, it was reuctant to do so direct as that of suspected mass graves of those who had “disappeared”. In 1994, coud e interpreted as treating it ie a state. he report aso a mass rae as found in uriaanda here it as seuated pointed out that there had een a faiure to investigate poitica that the remains of the odies of the shooos ied in the iings, summar eecutions eing carried out the oice and Embilipitiya Abduction and Murder Case ere found aon ith man reports of resurgence of enforced and invountar disappearances others mass rae at hemmani on the affna eninsua here especia of ami outh. t the uman ights ounci session in the remains of hundreds of eoe ho disaeared in ere une , ston again drew attention to the use of aied eieed to e uried as reeaed he reort aed uon the paramilitary groups to carry out the government’s counter oernment to use methods onsistent ith the uideines on insurgenc strateg and to maintain contro in the ast and in the isinterment and nasis of eeta emains in order to Jaffna. It was reported that the Eelam People’s Democratic Part ensure that the eidene is handed in a roer manner and (EPDP) and the People’s Liberation Organization of Tamil Eelam itnesses are adeuate roteted were responsie for unawfu iings and enforced disappearances. The government’s response to the spate of attacks hii ston the eia aorteur on traudiia and iings had een far from satisfactor. It has een sow to ummar or ritrar eutions undertoo a mission to ri conduct investigations and ring perpetrators to ustice. ne ana in at the initation of the oernment n his reort notae incident invoved the nited eopes reedom iance ston foused on oitia iins reatin to the easefire the roe candidate uminda iva shots fired from his vehice ied one person in the crowd. o investigation was carried out and the case was dropped short after. his ase as heard in the atnaura ih ourt in entto shooos from miiitia ere idnaed tortured and a ut three ied sodiers of the ri anan rm he oernment and the ith rtier ccording to the tate epartment, whie reiae statistics on eiment at the time denied the eents unti the defeat in near the numer of disappearances were difficut to otain, estimates fie ears after the adutions too ae i sodiers and the rinia of the shoo the os attended ere sentened to ears imrisonment o hih range etween 4 for the ear 9 with the maorit taing ranin offiias ere auitted he ase aart from its horror reresented pace in the orth and ast. he government noted the need to another eame of the tate faiin to adeuate roseute rimes ommitted estaish one authoritative source of information reating to these memers of its armed fores incidents in its report to the uman ights ounci in and to

11 Sri Lanka: State of Human Rights: 2018

maintain a database of reported incidents. owever at the end of insurrection in the South in the s and s. In Sri this framework was hardly evident and little or no Lanka signed the International onvention for the Protection of information was provided to the families regarding abductees. The All Persons from nforced Disappearance and ratified it in ay orking roup on Enforced or Involuntary Disappearances also . To give effect to this the International onvention for the epressed their concern over the number of reported cases of Protection of All Persons from nforced Disappearance ill was enforced disappearance in the country. gaetted in ebruary . It was passed by Parliament in . Article 2 of the Act defines the crime of “enforced disappearance”. The year marked a significant departure from previous years Aiding and abetting are also offences. It is hoped that this new law as for the first time in years not a single enforced or involuntary will contribute to the elimination of enforced disappearances in the disappearance was reported. imilarly arbitrary arrests and country. detentions ended in with the notable eception of zath alley who was the eneral ecretary of the ational nity 2.3 Torture lliance. hile a fundamental rights case was filed on his behalf it The widespread use of torture in custody and impunity associated never proceeded as alley was released soon afterwards. with it was a maor concern during the conflict. The Supreme In addition to the detention of thousands of IDPs in “welfare ourt the ommittee against Torture as well as local and camps” the government routinely arrested and detained Tamil international human rights organisations have called upon the citizens. ome arrests such as that of an astrologer who gave government to end the culture of impunity relating to torture. negative predictions concerning the President appear to be Despite several awards of compensation against police officers in “patently arbitrary.” Amnesty International in its submission at the fundamental rights cases only a few indictments have been filed niversal Periodic eview (P) session on ri Lanka pointed to by the Attorneyeneral. The Special apporteur on Torture in his the lack of clarity over procedures following arrests. rbitrary report while acknowledging the action taken by Sri Lanka to adopt detention and mistreatment of prisoners by police and armed domestic legislation to give effect to the onvention against forces was an ongoing concern. This was mainly due to the Torture pointed out that more prosecutions and convictions will draconian provisions of the Prevention of Terrorism Act which be required to “significantly affect the problem of impunity…” undermined accepted international human rights norms on due process. ome people have been arrested under the PT Despite the fact that torture is illegal and a criminal offence torture which conflicts with Sri Lanka’s obligations under the International continues to take place particularly in the contet of criminal ovenant on ivil Political ights (IP). investigations and in police custody. The uman ights ommission revealed that it had received complaints of torture The use of enforced disappearances started with the insurrection in indicating that torture is not a thing of the past — we did in the s and continued throughout the armed conflict and the not see the end of torture with the end of the war. The PTA gave

12 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years maintain a database of reported incidents. owever at the end of insurrection in the South in the s and s. In Sri this framework was hardly evident and little or no Lanka signed the International onvention for the Protection of information was provided to the families regarding abductees. The All Persons from nforced Disappearance and ratified it in ay orking roup on Enforced or Involuntary Disappearances also . To give effect to this the International onvention for the epressed their concern over the number of reported cases of Protection of All Persons from nforced Disappearance ill was enforced disappearance in the country. gaetted in ebruary . It was passed by Parliament in . Article 2 of the Act defines the crime of “enforced disappearance”. The year marked a significant departure from previous years Aiding and abetting are also offences. It is hoped that this new law as for the first time in years not a single enforced or involuntary will contribute to the elimination of enforced disappearances in the disappearance was reported. imilarly arbitrary arrests and country. detentions ended in with the notable eception of zath alley who was the eneral ecretary of the ational nity 2.3 Torture lliance. hile a fundamental rights case was filed on his behalf it The widespread use of torture in custody and impunity associated never proceeded as alley was released soon afterwards. with it was a maor concern during the conflict. The Supreme In addition to the detention of thousands of IDPs in “welfare ourt the ommittee against Torture as well as local and camps” the government routinely arrested and detained Tamil international human rights organisations have called upon the citizens. ome arrests such as that of an astrologer who gave government to end the culture of impunity relating to torture. negative predictions concerning the President appear to be Despite several awards of compensation against police officers in “patently arbitrary.” Amnesty International in its submission at the fundamental rights cases only a few indictments have been filed niversal Periodic eview (P) session on ri Lanka pointed to by the Attorneyeneral. The Special apporteur on Torture in his the lack of clarity over procedures following arrests. rbitrary report while acknowledging the action taken by Sri Lanka to adopt detention and mistreatment of prisoners by police and armed domestic legislation to give effect to the onvention against forces was an ongoing concern. This was mainly due to the Torture pointed out that more prosecutions and convictions will draconian provisions of the Prevention of Terrorism Act which be required to “significantly affect the problem of impunity…” undermined accepted international human rights norms on due process. ome people have been arrested under the PT Despite the fact that torture is illegal and a criminal offence torture which conflicts with Sri Lanka’s obligations under the International continues to take place particularly in the contet of criminal ovenant on ivil Political ights (IP). investigations and in police custody. The uman ights ommission revealed that it had received complaints of torture The use of enforced disappearances started with the insurrection in indicating that torture is not a thing of the past — we did in the s and continued throughout the armed conflict and the not see the end of torture with the end of the war. The PTA gave

13 Sri Lanka: State of Human Rights: 2018

a good pretet for torture under the guise of interrogation and 2.5 Internally displaced persons (IDPs) inestigation. he methods of torture reported ere inhumane and ne of the saddest results of the ethnic conflict as a generation degrading and many detainees died in custody as a result. of thousands of s many of hom ere displaced multiple times. According to the inistry of ehabilitation and 2.4 Emergency rule econstruction at the end of there ere close to he country as under emergency rule for much of the ciil ar s in ri ana. hese numbers ere contested by s and ith only brief periods ithout it. mergency regulations humanitarian agencies ho argued that the actual number is higher suspended basic safeguards against abuse and the uman ights by at least . tandard of liing as not improed camps as orce hich as charged ith registering and ere oercroded families ere separated poor sanitary monitoring the elfare of the detainees as depried of its conditions preailed and mobility as restricted ith little or no poers. n eptember emergency regulations imposed access to health serices and education. he situation of s censorship on the reporting of all military actiities for three remained dire and the ommittee on conomic ocial and months hich also hindered the actiities of humanitarian ultural ights highlighted their plight in its report on ri ana in organisations. n emergency rule hich as hitherto . Access to food shelter and education as limited and reports restricted to the orth ast and olombo as etended to the of forced labor in conflict ones emerged. he report entire country. umerous emergency regulations ere adopted called upon the goernment to adhere to the uiding including a ban on ay ay processions. llegal detention led to rinciples on nternal isplacement and incorporate them into the landmar case of Wimalenthiran hich significantly altered the policy concerning s. traectory of human rights abuses in detention. he plight of s continued to be a cause for concern throughout ith the ceasefire in 22 emergency rule as lifted. his had a the conflict. estimated that people ere beneficial effect not only in relation to the integrity of the person internally displaced at the end of 2. anitation and health but also in relation to freedom of epression. oeer no effort malnutrition education seual harassment prostitution rape and as made to repeal the Prevention of Terrorism Act or to amend the abuse ere all maor concerns. n addition there ere ri Public Security Ordinance. he goernment hoeer repealed the anan refugees in ndia. y the end of 2 reported defamation proisions in the Penal Code and the Press Council Law that there ere 2 s and returnees. Areas most and consultations ere set in motion to draft a reedom of affected ere rincomalee atticaloa affna illinochchi and nformation Act. ullaitiu. he goernment as unable to cope ith the speed of displacement and local s church groups the orld ood rogram and the assisted ith the proision of food and shelter.

14 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years a good pretet for torture under the guise of interrogation and 2.5 Internally displaced persons (IDPs) inestigation. he methods of torture reported ere inhumane and ne of the saddest results of the ethnic conflict as a generation degrading and many detainees died in custody as a result. of thousands of s many of hom ere displaced multiple times. According to the inistry of ehabilitation and 2.4 Emergency rule econstruction at the end of there ere close to he country as under emergency rule for much of the ciil ar s in ri ana. hese numbers ere contested by s and ith only brief periods ithout it. mergency regulations humanitarian agencies ho argued that the actual number is higher suspended basic safeguards against abuse and the uman ights by at least . tandard of liing as not improed camps as orce hich as charged ith registering and ere oercroded families ere separated poor sanitary monitoring the elfare of the detainees as depried of its conditions preailed and mobility as restricted ith little or no poers. n eptember emergency regulations imposed access to health serices and education. he situation of s censorship on the reporting of all military actiities for three remained dire and the ommittee on conomic ocial and months hich also hindered the actiities of humanitarian ultural ights highlighted their plight in its report on ri ana in organisations. n emergency rule hich as hitherto . Access to food shelter and education as limited and reports restricted to the orth ast and olombo as etended to the of forced labor in conflict ones emerged. he report entire country. umerous emergency regulations ere adopted called upon the goernment to adhere to the uiding including a ban on ay ay processions. llegal detention led to rinciples on nternal isplacement and incorporate them into the landmar case of Wimalenthiran hich significantly altered the policy concerning s. traectory of human rights abuses in detention. he plight of s continued to be a cause for concern throughout ith the ceasefire in 22 emergency rule as lifted. his had a the conflict. estimated that people ere beneficial effect not only in relation to the integrity of the person internally displaced at the end of 2. anitation and health but also in relation to freedom of epression. oeer no effort malnutrition education seual harassment prostitution rape and as made to repeal the Prevention of Terrorism Act or to amend the abuse ere all maor concerns. n addition there ere ri Public Security Ordinance. he goernment hoeer repealed the anan refugees in ndia. y the end of 2 reported defamation proisions in the Penal Code and the Press Council Law that there ere 2 s and returnees. Areas most and consultations ere set in motion to draft a reedom of affected ere rincomalee atticaloa affna illinochchi and nformation Act. ullaitiu. he goernment as unable to cope ith the speed of displacement and local s church groups the orld ood rogram and the assisted ith the proision of food and shelter.

15 Sri Lanka: State of Human Rights: 2018

n eptember 2 although it ordered the and s to desite the assurances given to the UN Secretary General’s Special leae the anni region due to security riss the goernment eresentative Olara Otunu. ollowing the visit by the euty alloed personnel to accompany food conoys een hen irector of to the orthern art of ri ana where he humanitarian access remained etremely limited. According to met with reresentatives, the too a series of Amnesty nternational tens of thousands of families ere forced measures to not recruit children and to allow the to monitor to lie in the open during the rainy season in oember 2. t comliance with these undertaings. Amnesty nternational as alleged that the goernment deliberately underestimated the aealed to the in October 200 urging an end to the numbers of ciilians trapped behind lines leading to a ongoing recruitment of children as “children have no role to play seere shortage of food and medicine. t is not clear ho many in war.” ciilians may hae died due to the shortage of food and medicine during the last fe months of the military offensie. Another grave concern relating to children was the alarming rates of school droouts in the orth and ast. wo main reasons were olloing the conclusion of military operations in ay 2 contributing to this — an acute shortage of trained teachers in approimately 2 ciilians ere placed in camps located in these areas and the need for children to contribute to the family Vavuniya. About 245,000 were detained in “welfare centers” and income. ere not alloed to leae on the ground that remaining separatist elements may hae infiltrated the group. any international he ecial Advisor to the ecial eresentative on hildren obserers and local legal eperts questioned the longterm in Armed conflict, Alan oc visited ri ana in ovember 200. detention of s hich also iolated the uiding rinciples e reorted on the ractice of recruiting child solders by both the on nternal isplacement. and the aruna faction as well as signs that comlicity eisted between the government forces and the aruna faction. any of those released ere unable to return to their homes due he army denied allegations and the resident romised an to damage from ar or uncleared landmines. s remaining in immediate investigation. owever, no action had been taen by the eni arm ere not alloed to moe freely until ecember the end of the year. 2 hen a system of temporary eit passes as implemented. y early 2 most of the detained s ere released to their esite the assurances given at various times and the government’s relaties. policy of ‘zero tolerance’ the LTTE and TMVP continued to recruit child soldiers in 200 and 200. nconfirmed reorts 2.6 Rights of children and child soldiers suggest that the greatly increased the recruitment of children One of the most serious issues concerning children’s rights was the in the face of government military oerations in illinochchi. t continued conscription of children by the as combatants was reorted that both boys and girls as young as 2 years were

16 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

17 Sri Lanka: State of Human Rights: 2018

forced to oin. y the end of these children were held in government to ensure that people ere free to exercise their governmentrun detention centres which sought to provide franchise without fear, no such action was taken: “It is most rehailitation. ehailitation and reintegration of former regrettable that the right to vote freely — a right so fundamental comatants including children was identified y the government as to the democratic process — remains vulnerable in ri anka, a ey priority in its report to the UN uman ights ouncil. despite the relatively high voter turnout.” he th mendment to the onstitution as passed in ctober 2.7 Attacks on the right to vote and democratic processes . It gave the ommissioner of lections additional poers to ne of the worrying trends which had a direct earing on ensure free and fair elections and to annul a poll here the vote democratic governance was the increasing militarisation of has not been free, eual and secret. In the landmark case of elections themselves. Elections ecame a site for widespread Egodawala and Others v. Dayananda Dissanayake and Others the violence intimidation various malpractices — including voter Supreme Court emphasised that the “mere semblance of a poll is fraud and misuse of state resources y the ruling party — and even not enough…” Violence continues to be a feature of the most murder of opponents. s the verview of one of the reports democratic process in a democratic country — elections. he noted: “It is a great irony that the public is placed at greater risk of entre for onitoring lection iolence reported , violence and intimidation during election periods than at other incidents and deaths during a period of months immediately times, violating the right to free expression through the vote.” preceding the parliamentary elections held in ecember . y any measure, this is a very high incidence of electionrelated Many displaced people were effectively disenfranchised as they violations. It is a real cause for concern that something as basic and were unale to register to vote or reach a polling station. n fundamental as elections have become so militarised. addition elections were held under emergency rule and due to the censorship of military news voters were denied information on 2.8 Women’s rights, sexual violence and war widows important issues. n the positive side the numer of civil society nother issue of concern has been sexual violence against omen organisations that monitor elections increased as did the scope of in the context of the ongoing ar in the orth and ast, although their wor. The entre for Policy lternatives filed a petition incidents of this kind ere by no means confined to those areas. efore the uman ights ommission on the issue of Indeed, a idely publicised event as the gang rape of a amil politicisation and intimidation of state institutions. The oman at a security check point in olombo. olloing several reuested the ommissioner of Elections to direct the GP to reports of rape by security forces in many parts of the orth and mae pulic all directions circulars and instructions issued to ast, mnesty International called upon resident umaratunge police to ensure free and fair elections. espite the call to the to take action to stop rape by security forces and to bring

verview Sri Lana State of uman ights p . Ibid., p

18 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years forced to oin. y the end of these children were held in government to ensure that people ere free to exercise their governmentrun detention centres which sought to provide franchise without fear, no such action was taken: “It is most rehailitation. ehailitation and reintegration of former regrettable that the right to vote freely — a right so fundamental comatants including children was identified y the government as to the democratic process — remains vulnerable in ri anka, a ey priority in its report to the UN uman ights ouncil. despite the relatively high voter turnout.” he th mendment to the onstitution as passed in ctober 2.7 Attacks on the right to vote and democratic processes . It gave the ommissioner of lections additional poers to ne of the worrying trends which had a direct earing on ensure free and fair elections and to annul a poll here the vote democratic governance was the increasing militarisation of has not been free, eual and secret. In the landmark case of elections themselves. Elections ecame a site for widespread Egodawala and Others v. Dayananda Dissanayake and Others the violence intimidation various malpractices — including voter Supreme Court emphasised that the “mere semblance of a poll is fraud and misuse of state resources y the ruling party — and even not enough…” Violence continues to be a feature of the most murder of opponents. s the verview of one of the reports democratic process in a democratic country — elections. he noted: “It is a great irony that the public is placed at greater risk of entre for onitoring lection iolence reported , violence and intimidation during election periods than at other incidents and deaths during a period of months immediately times, violating the right to free expression through the vote.” preceding the parliamentary elections held in ecember . y any measure, this is a very high incidence of electionrelated Many displaced people were effectively disenfranchised as they violations. It is a real cause for concern that something as basic and were unale to register to vote or reach a polling station. n fundamental as elections have become so militarised. addition elections were held under emergency rule and due to the censorship of military news voters were denied information on 2.8 Women’s rights, sexual violence and war widows important issues. n the positive side the numer of civil society nother issue of concern has been sexual violence against omen organisations that monitor elections increased as did the scope of in the context of the ongoing ar in the orth and ast, although their wor. The entre for Policy lternatives filed a petition incidents of this kind ere by no means confined to those areas. efore the uman ights ommission on the issue of Indeed, a idely publicised event as the gang rape of a amil politicisation and intimidation of state institutions. The oman at a security check point in olombo. olloing several reuested the ommissioner of Elections to direct the GP to reports of rape by security forces in many parts of the orth and mae pulic all directions circulars and instructions issued to ast, mnesty International called upon resident umaratunge police to ensure free and fair elections. espite the call to the to take action to stop rape by security forces and to bring

verview Sri Lana State of uman ights p . Ibid., p

19 Sri Lanka: State of Human Rights: 2018

perpetrators to ustice. oweer, the slow pace of inestigations easeire, and eace tals and the pressure eerted on medical personnel to coer up cases While Norwa sought to initiate peace tals etween the two of rape hae resulted in massie delas in bringing perpetrators to parties in no formal tals too place and the unilaterall ustice. declared ceasefire the LTTE in the earl part of the ear was rescinded the LTTE itself. ne of the most daring attacs he end of the war in brought new challenges for the the LTTE outside the main conflict one was its attac on the protection of women’s rights in the North and East. ilitarisation andaranaie nternational irport. This had a huge economic and of the area compounded the challenges and women heads of political impact on the countr. n a separate suicide om attac households were affected b the slow pace of postwar recoer the rime inister Ratnasiri Wicramanaae escaped narrowl. efforts. oss of breadwinners due to the war sometimes disappearances threw women into a web of debt and their The general election in ecemer rought the nited lielihoods were affected because of the increased use of National ront goernment to power under the leadership of Ranil machiner in haresting and farming. nother issue was the lack Wicremasinghe and a sense of cautious optimism preailed during of adeuate housing and transfers of land title ownership. . The ceasefire agreed to etween the LTTE and the Increased seual iolence was another concern in the orth and oernment was central to this. espite some reaches the ast. ceasefire lasted throughout the ear. The cessation of hostilities and the lifting of the emargo on the transport of numerous goods n the positie side, attempts were made to improe the status of to the North East rought considerale improement to the lies women in the countr b adopting a law on omestic Violence as of those liing within the conflict ones. s the ceasefire held and well as one on Women’s Rights. The Women’s Rights Law sought some checpoints in the outh egan to e eased it was generall to coert the ational Committee on omen into a Commission felt that the ceasefire would hold. Resettling and rehailitating the with enhanced powers. ational ction lan for the rotection displaced and reconstructing the North East ecame the central and romotion of uman ights contained a chapter issue of the peace tals. nother grae issue was the continued dedicated to rights of women. ational ction lan on omen conscription of children the LTTE which inoled oth was also drafted and a national committee was appointed aductions and oluntar recruitment. ntensie loing to formulate an action plan for womenheaded households as women’s organisations led to the establishment of a of households are headed b women. Steps were also taken to sucommittee on gender issues to adise on the inclusion formulate an action plan on genderbased iolence. of gender concerns in the peace process. ts first meeting too place in earl . uring the second round of peace tals the two parties agreed to inite an artin a former ecretar eneral of mnest nternational to proide epert adice on the

20 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years perpetrators to ustice. oweer, the slow pace of inestigations easeire, and eace tals and the pressure eerted on medical personnel to coer up cases While Norwa sought to initiate peace tals etween the two of rape hae resulted in massie delas in bringing perpetrators to parties in no formal tals too place and the unilaterall ustice. declared ceasefire the LTTE in the earl part of the ear was rescinded the LTTE itself. ne of the most daring attacs he end of the war in brought new challenges for the the LTTE outside the main conflict one was its attac on the protection of women’s rights in the North and East. ilitarisation andaranaie nternational irport. This had a huge economic and of the area compounded the challenges and women heads of political impact on the countr. n a separate suicide om attac households were affected b the slow pace of postwar recoer the rime inister Ratnasiri Wicramanaae escaped narrowl. efforts. oss of breadwinners due to the war sometimes disappearances threw women into a web of debt and their The general election in ecemer rought the nited lielihoods were affected because of the increased use of National ront goernment to power under the leadership of Ranil machiner in haresting and farming. nother issue was the lack Wicremasinghe and a sense of cautious optimism preailed during of adeuate housing and transfers of land title ownership. . The ceasefire agreed to etween the LTTE and the Increased seual iolence was another concern in the orth and oernment was central to this. espite some reaches the ast. ceasefire lasted throughout the ear. The cessation of hostilities and the lifting of the emargo on the transport of numerous goods n the positie side, attempts were made to improe the status of to the North East rought considerale improement to the lies women in the countr b adopting a law on omestic Violence as of those liing within the conflict ones. s the ceasefire held and well as one on Women’s Rights. The Women’s Rights Law sought some checpoints in the outh egan to e eased it was generall to coert the ational Committee on omen into a Commission felt that the ceasefire would hold. Resettling and rehailitating the with enhanced powers. ational ction lan for the rotection displaced and reconstructing the North East ecame the central and romotion of uman ights contained a chapter issue of the peace tals. nother grae issue was the continued dedicated to rights of women. ational ction lan on omen conscription of children the LTTE which inoled oth was also drafted and a national committee was appointed aductions and oluntar recruitment. ntensie loing to formulate an action plan for womenheaded households as women’s organisations led to the establishment of a of households are headed b women. Steps were also taken to sucommittee on gender issues to adise on the inclusion formulate an action plan on genderbased iolence. of gender concerns in the peace process. ts first meeting too place in earl . uring the second round of peace tals the two parties agreed to inite an artin a former ecretar eneral of mnest nternational to proide epert adice on the

21 Sri Lanka: State of Human Rights: 2018

inororation of hman rights into the eae roess esite the signing of an b the two arties ontined to rerit hildren and etort mone and land from residents in the orth and ast oreoer the ri ana onitoring ission — established to inire into an iolations of the terms of the — seemed to be trning a blind ee to the abses n an eent their atiities were onfined to goernmentontrolled areas and not ontrolled areas n ril before the formal eae tals had started the leader of the af aeem met with the leader rabhaaran to disss isses relating to lands belonging to slims hile r rabhaaran romised to retrn these lands as soon as ossible and the isse was taen in the ontet of formal tals no resoltion was reahed b the end of the ear oon after the was signed seeral restritions on trael were lifted o were the embargos on ertain goods hese deisions were made in an effort to establish trst and to restore normal in the orth and ast ater throgh orwegian failitation the agreed to oen the highwa throgh anni whih remained nder ontrol n addition to easing restritions on trael restritions on fishing in the orth and ast were also lifted hile there were eriodi meetings between the goernment and the reresentaties the was nwilling to enter into formal eae negotiations while it remained a rosribed that women’s priorities and needs were taken into organisation n etember the goernment lifted the ban and soon thereafter formal eae tals began with two sides ehanging risoners of war he ontained seeral roisions on roteting iilians from attas as well as from to children’s lives. The parties also agreed to tortre intimidation abdtion etortion and harassment he agreed that the head of the wold be aointed b the

22 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years inororation of hman rights into the eae roess esite the signing of an b the two arties ontined to rerit hildren and etort mone and land from residents in the orth and ast oreoer the ri ana onitoring ission — established to inire into an iolations of the terms of the — seemed to be trning a blind ee to the abses n an eent their atiities were onfined to goernmentontrolled areas and not ontrolled areas n ril before the formal eae tals had started the leader of the af aeem met with the leader rabhaaran to disss isses relating to lands belonging to slims hile r rabhaaran romised to retrn these lands as soon as ossible and the isse was taen in the ontet of formal tals no resoltion was reahed b the end of the ear oon after the was signed seeral restritions on trael were lifted o were the embargos on ertain goods hese deisions were made in an effort to establish trst and to restore normal in the orth and ast ater throgh orwegian failitation the agreed to oen the highwa throgh anni whih remained nder ontrol n addition to easing restritions on trael restritions on fishing in the orth and ast were also lifted hile there were eriodi meetings between the goernment and the reresentaties the was nwilling to enter into formal eae negotiations while it remained a rosribed that women’s priorities and needs were taken into organisation n etember the goernment lifted the ban and soon thereafter formal eae tals began with two sides ehanging risoners of war he ontained seeral roisions on roteting iilians from attas as well as from to children’s lives. The parties also agreed to tortre intimidation abdtion etortion and harassment he agreed that the head of the wold be aointed b the

23 Sri Lanka: State of Human Rights: 2018

lthogh the ceaseire etween the government and the TT remained in orce throgh no progress was made with regard to the peace talks. n ovemer in his eroes a speech the TT leader threatened to retrn to hostilities i peace talks did not resme on their terms. owever no hostilities had resmed when another disaster strck the warravaged contr the ndian cean tsnami hit the island on ecemer killing over people and rendering over people homeless. Those on the east coast were the hardest hit. ch o the ear in the contr tried hard to cope with the atermath o the tsnami in addition to dealing with a disintegrating peace process. abduction of the Eastern University’s Vice Chancellor who remained missing at year’s end. n anar the easeire greement etween the government and the TT was oiciall terminated. tate o emergenc was enorced throghot and eond the end o the militar operation in a . n a the armed orces militaril deeated the TT captring all TTcontrolled territor and killing its leadership inclding elpillai rahakaran. oth parties to the conlict were accsed o committing gross violations o hmanitarian and hman rights law and there were increased calls to hold the government accontale or war crimes.

olitical climate and the decline in human rights rotection in the countr The election o ahinda aapaksa as resident in ovemer on an antipeace and pronitar state platorm was a trning point in relation to the armed conlict and hman rights in the contr. The TT prevented the Tamil poplation in the orth and ast rom voting. ahinda aapaksa ormed a coalition with and Jathika Hela Urumaya — oth ltrainhala nationalist

parties. This copled with the hardline stance taken the TT

24 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

25 Sri Lanka: State of Human Rights: 2018

and the generalised culture of terror and violence are discussed in and estalished a committee to do so. t as formerly aetted as the net section. ac of accountability and a culture of imunity a ill in ecemer 201 and as hailed as one of the est in the revailed during the aaasa administration. orld y many oranisations incldin AR 1.

n ovember resident aaasa issued a roclamation n addition, the 1thAmendment to the onstittion as adopted under the Constitution seeing a further term. n a surrising in May 201. iscssions on the prospects for constittional move aithriala irisena the inister of ealth announced his reform hae een onoin in Sri ana since ndependence. Most intention to contest the election. is candidacy was suorted by recent discssions hae een larely concerned ith findin a the U defectors from the and civil society organisations. soltion to the ethnic conflict and redcin the poers of the ew thought it was ossible to tole the aaasa dynasty that ectie residency hich ere introdced in the 1 had taen root in ri ana. owever within a short san of si onstittion and hich inclined the presidency toards wees that became a reality. any believe that social media athoritarianism. activism contributed to this change. ri anan Electoral Commissioner ahinda eshariya was raised for his leadershi pectations for constittional reform ere hih hen Sirisena during this time using electoral laws and regulations effectively to as elected resident. rin the election, the plic moilised rotect the integrity of what was a heavily contested but free and arond his campain to aolish the ectie residency, hich fair election. rust in the institution of the Electoral Commission conseently etended to frther promises of reform once the rose significantly in this eriod. 1th Amendment as passed. ermed a historic piece of leislation, the 1th Amendment did limit the athoritarian scope As SHR 2016 noted, “the election of Maithripala irisena as of the President’s office and the President’s powers of resident in anuary heralded a new era for ri anan civil appointment. t restored term limits on the presidency hich ere society and media.” is camaign was on a latform of good oriinally there t ere remoed nder the Raapasa governance and was in shar contrast to the modus oerandi of administration. t also inclded a ne fndamental riht — the the aaasa administration ramant with corrution media riht to access information, formally constittionalisin it. reression and gross human rights violations. n eeing with his Hoeer, its ordin has een criticised as oerly restrictie in election romise of good governance and transarency the scope. nce it as passed, there ere epectations for a government announced lans to draft a right to information law transparent and consltatie process to help draft a ne Constitution, which would consequently strengthen the country’s Democracy in Post-War Sri Lanka C . democratic instittions and rin a sstainale political soltion to httswww.calana.orgwcontentuloadsemocracysurvey the ethnic conflict. uneinaleort.df ri ana tate of uman ights .

26 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years and the generalised culture of terror and violence are discussed in and estalished a committee to do so. t as formerly aetted as the net section. ac of accountability and a culture of imunity a ill in ecemer 201 and as hailed as one of the est in the revailed during the aaasa administration. orld y many oranisations incldin AR 1.

27 Sri Lanka: State of Human Rights: 2018

Pulic epresentations Coittee on Constitutional efor to face strong opposition. bservers have continued to criticise PCC was appointed in eceer he PCC the influence of Sri Lanka’s security sector in undermining civilian requested suissions and held pulic for a during this tie he oversight of the military and for clarifying the role of intelligence recoendations were receied with arying leels of agreeent groups in the country. uch of the deadlock around issues of oweer, undeniale consensus arose in support for the epansion constitutional reform now seems a product of political of huan rights protection in the Constitution his included calls manoeuvring. for protection against discriination and special proisions for disenfranchised groups. Women’s groups were particularly strong nternational reaties and crutin o the in adocating for the socioeconoic rights of woen, particular nternational ommunit with respect to rticle of the Constitution and its ephasis that espite ratifying several international treaties in , Sri Lanka personal laws would preail in spite of their conflicts with the was tardy in submitting several country reports due under various Constitution consensus resolution was passed in early , treaties it had ratified W, , and which laid the groundwor for the drafting of a new constitution ICESCR. Sri Lanka’s human rights record came under scrutiny and saw all eers of Parliaent ecoe eers of the when it sought to renew its eneralied System of ariff Constitutional ssely responsile for its drafting references status with the uropean nion. he eneralised Scheme of references S is a series of trade concessions he teering Coittee was led y the Prie inister, aided y granted to certain countries by the uropean nion should they si sucoittees which prepared reports on different areas choose to abide by a series of core human rights conventions. he releant to the drafting he coittees hae so far recoended S offers duty concessions on exports in situations where their support for the epansion of fundaental rights aour has countries commit to core international conventions on human generally tended towards a stronger inclusion of econoic, social and labour rights, sustainable development and good governance. and cultural rights than in preious constitutions, though n ugust , Sri Lanka was removed from the S lus trade considerale aclash to this proposal eists — those in opposition concessions for noncompliance and noneffective suggest that such rights could place an unnecessary urden on the implementation, particularly with reference to a lack of adherence state and udiciary he inclusion of a road equality clause which to the nternational ovenant on ivil and olitical ights prohibits discrimination based on “gender, sex, sexual orientation, gender identity” is a positive step, even when Sri Lanka’s Penal Code rticle is a clause that suggests all written and unwritten laws existing prior to are both valid and operative. t has the effect of validating certain still criinalises saese relations efor of rticle continues laws that conflict with the fundamental rights granted to all citien. n example of one such law is the Muslims Marriage and Divorce ct . Sri Lanka State of uman ights, , p. ‘GSP Plus impact’, Daily FT, httpwww.ft.lkopinionSlus impact

28 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

29 Sri Lanka: State of Human Rights: 2018

ICCPR — a Supreme Court dvisory pinion in concluded U personnel and even diplomats. In 00 several highlevel U that Sri Lanka’s legal regime failed to test ICCPR implementation officials visited Sri Lanka. In ugust, the U UnderSecretary in content and sustance particularly the right to access legal General for umanitarian ffairs, Sir ohn olmes undertook a counsel, individual communication to the uman Rights fourday mission to Sri Lanka. e announced that the government Committee and reforming the P. ut ith Sirisena’s election had promised to increase access to aid agencies to newly resettled in and his government’s seeming commitment to human and conflict areas. e called upon the LE to allow aid workers rights through the enactment of the th mendment and to carry out their work and stressed that the aruna group had to adoption of Resolution 30/1, a path was paved for Sri Lanka’s re be disarmed. is remark that Sri Lanka was one of the most acceptance in the EU’s trade scheme. he GSP as reinstated in dangerous places for aid workers raised an outcry in Sri Lanka. ay of . he GSP provides an important space for stakeholders (civil society and business) to monitor the state’s In ctober, the U igh Commissioner for uman Rights, treatment of its oligation and advocate for certain improvements Louise rbour visited the country. lthough she paid a brief visit if they see fit. he GSP Plus provides a strong financial incentive to affna under military escort, she was not able to visit either the for Sri Lanka to uphold and implement its human right Eastern Province or illinochchi. She epressed grave concern and responsiilities under international conventions — revenue loss alarm about the armed conflict, the emergency measures taken during the period of removal as estimated to e Rs against terrorism, the weakness of the rule of law and the illion. prevalence of impunity. She called for an independent monitoring mechanism to investigate the alarming number of abductions and s the ar intensified, the government also intensified its disappearances because of the failure of the government to crackdon on dissenters, including media personnel, aid orkers, investigate and provide relief to the families of the victims.

he Special Rapporteur on orture, anfred owak, also See Gunatilleke here https.academia.eduGSPRevaluationofenefits.pdf undertook a visit in ctober. hile noting the measures taken by Resolution Promoting reconciliation, accountaility and human rights the government to combat torture, he pointed out that these in Sri Lanka as adopted on ctoer, . he Resolution recalled cannot be regarded as fully effective. e referred to the high previous human rights commitments, reaffirmed Sri Lanka’s commitment to uphold the human rights and fundamental freedoms of all its citiens and put number of complaints to the uman Rights Commission and forard a numer of reuests and recommendations to encourage the success successful fundamental rights cases, illustrating that torture was of the country’s transitional justice process. GSP SRI L EEIS CLLEGERS, Sri Lanka still widely practiced in Sri Lanka. e epressed shock at the Brief, pril httpsrilankarief.orggspandsrilanka brutality of the methods used. enefitsandcallengers GSP Plus impact’, Daily FT, http.ft.lkopinionGSPPlus impact

30 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

31 Sri Lanka: State of Human Rights: 2018

In ecember, the Representative of the U Secretary General on n mid the Secretar eneral appointed a anel of the uman Rights of Internally isplaced Persons, alter alin perts to advise him on the implementation of the oint undertook a mission to Sri Lanka. e too was not permitted to Commitment included in the oint Statement. The anel visit illinochchi. e noted the compleity of the IP situation in comprising three memers was merel to advise the Secretar Sri Lanka due to both the conflict and the tsunami but pointed out eneral on the etent of allegations and whether the were ased that the government bore the primary responsibility for protecting on credile information. This mandate was misunderstood and assisting IPs. e also stressed the need to find a balance many as including an investigation. The Panel’s report was issued between humanitarian and security concerns so that people could in arch . t placed accountailit at the helm and found live in dignity and safety. he plight of female headed households credile allegations of war crimes and crimes against humanit and widows was highlighted as needing special attention. committed oth parties to the conflict during the final stages of the war. The report pointed to several grave reaches of In ay 00, Sri Lanka lost its bid for reelection to the U humanitarian law sstematicall shelling of hospitals the uman Rights Council due to strong objections by states and government despite nowing well their locations sstematicall Gs on account of its poor human rights record and the failure depriving people in the conflict one of humanitarian aid in the to meet past commitments to the Council. The government’s form of food and medical supplies especiall surgical supplies and attitude was uite high handed during this time, describing eminent purposel underestimating the numer of civilians who remained people, including the U Secretary General, as LE supporters in the conflict one. The report was met with a negative response and sympathisers. In its report to the uman Rights Council, the from the government while civil societ groups remained largel government had to reconcile its position with the Supreme Court’s silent ecept for the strong critiue the arga nstitute. The decision in the Singarasa case, which sent shockwaves through the report contriuted to an adversarial discourse on accountailit in human rights community where it opined that the President could Sri ana. not cede judicial powers to an outside body. he government also rejected the recommendation to establish an independent human resident aapasa appointed the essons earnt and rights monitoring mechanism, in cooperation with the U igh econciliation Commission C in a amidst domestic Commissioner for uman Rights and to provide technical and international pressure to address accountailit issues and assistance to the ational uman Rights Commission. n attempt present a framewor for national reconciliation. The Commission to adopt a strongly worded resolution condemning the issued its report in ecemer and presented distinct government for the final stages of the military campaign against recommendations to the government on a range of issues the LE failed in the U uman Rights Council. Instead, a including displacement land detention media freedom muchwatered down resolution was adopted “welcoming the

conclusion of hostilities….” Sri ana State of uman ights .

32 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

33 Sri Lanka: State of Human Rights: 2018

investigations into etraudicial illings and enorced expressed her thanks to the Sri Lankan government for its disappearances and the independence o pulic institutions. ith cooperation. regard to the conduct o security orces during the last stages o the war, the report concluded that it was “exemplary” except for The framework of monitoring coupled with international advocacy some isolated incidents. This met with heavy criticism y many and information sharing seemed to have contributed to a parties oth domestically and internationally. noticeable improvement in human rights in 201. The overall number of extraudicial killings decreased and the alternative media n arch a resolution on ri ana sponsored y the was started playing a greater role. espite this, in January 201 the taled at the uman ights ouncil session. ight categories Chief Justice Shirani andaranayake was impeached by a o constructive recommendations made in the were Parliamentary Select Committee in complete disregard for due identiied in the resolution investigating widespread allegations o process. It also ignored a Supreme Court decision which held that etraudicial illings and enorced disappearances demilitarising the impeachment was in violation of the Constitution. the orth reevaluating detention policies promoting reedom o epression implementing impartial land dispute resolution The 2rd Commonwealth Heads of overnment meeting was mechanisms strengthening independent civil institutions reaching scheduled to be held in Sri Lanka in ovember 201. A number a political settlement on devolution o power and adopting rule o of states expressed concern over the human rights situation in the law reorms. The resolution was passed y a maority which country and Canada, India and the auritius boycotted the included ndia. Summit. The delegations were under pressure from human rights groups to condemn the government for failing to curb impunity The uman ights ouncil at its nd session adopted another and to ensure accountability for crimes committed during the war resolution on Sri Lanka titled “Promoting Reconciliation and and its aftermath. The ritish Prime inister avid Cameron Accountability in Sri Lanka.” It reiterated the government’s visited Jaffna and issued an ultimatum to the government of Sri responsiility to eectively implement the recommendations o Lanka to complete the investigation by arch 2014. The failure to the and conduct an independent investigation into alleged do so would result in a call for an international inuiry. violations o human rights and humanitarian law. oth resolutions deined a speciic role or the ice o the igh ommissioner In contrast to previous resolutions, the 2014 resolution of the or uman ights. avanethem Pillay the igh Human Rights Council gave a specific role to the OHCHR, given ommissioner or uman ights visited ri ana in ugust “the absence of a credible national process with tangible results.”20 2014. The OHCHR termed the visit a ‘success.’ She visited Jaffna, It requested the OHCHR “undertake a comprehensive illinochchi ullativu and Trincomalee during her visit and

20Sri Lanka State of Human Rights 201, .

34 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years investigations into etraudicial illings and enorced expressed her thanks to the Sri Lankan government for its disappearances and the independence o pulic institutions. ith cooperation. regard to the conduct o security orces during the last stages o the war, the report concluded that it was “exemplary” except for The framework of monitoring coupled with international advocacy some isolated incidents. This met with heavy criticism y many and information sharing seemed to have contributed to a parties oth domestically and internationally. noticeable improvement in human rights in 201. The overall number of extraudicial killings decreased and the alternative media n arch a resolution on ri ana sponsored y the was started playing a greater role. espite this, in January 201 the taled at the uman ights ouncil session. ight categories Chief Justice Shirani andaranayake was impeached by a o constructive recommendations made in the were Parliamentary Select Committee in complete disregard for due identiied in the resolution investigating widespread allegations o process. It also ignored a Supreme Court decision which held that etraudicial illings and enorced disappearances demilitarising the impeachment was in violation of the Constitution. the orth reevaluating detention policies promoting reedom o epression implementing impartial land dispute resolution The 2rd Commonwealth Heads of overnment meeting was mechanisms strengthening independent civil institutions reaching scheduled to be held in Sri Lanka in ovember 201. A number a political settlement on devolution o power and adopting rule o of states expressed concern over the human rights situation in the law reorms. The resolution was passed y a maority which country and Canada, India and the auritius boycotted the included ndia. Summit. The delegations were under pressure from human rights groups to condemn the government for failing to curb impunity The uman ights ouncil at its nd session adopted another and to ensure accountability for crimes committed during the war resolution on Sri Lanka titled “Promoting Reconciliation and and its aftermath. The ritish Prime inister avid Cameron Accountability in Sri Lanka.” It reiterated the government’s visited Jaffna and issued an ultimatum to the government of Sri responsiility to eectively implement the recommendations o Lanka to complete the investigation by arch 2014. The failure to the and conduct an independent investigation into alleged do so would result in a call for an international inuiry. violations o human rights and humanitarian law. oth resolutions deined a speciic role or the ice o the igh ommissioner In contrast to previous resolutions, the 2014 resolution of the or uman ights. avanethem Pillay the igh Human Rights Council gave a specific role to the OHCHR, given ommissioner or uman ights visited ri ana in ugust “the absence of a credible national process with tangible results.”20 2014. The OHCHR termed the visit a ‘success.’ She visited Jaffna, It requested the OHCHR “undertake a comprehensive illinochchi ullativu and Trincomalee during her visit and

20Sri Lanka State of Human Rights 201, .

35 Sri Lanka: State of Human Rights: 2018

investigation into alleged serious violations and abuses of human sunami and its termath rights and related crimes b both parties in Sri Lanka…… with ccording to orld ank figures Sri Lankans lost their assistance from relevant eperts and special procedures mandate lies in the tsunami and eole were dislaced. n addition holders.” redictabl this was met with huge resistance from the eole lost their source of lielihood and S million government. In a departure from the previous ear the worth of assets were lost. disaster of this magnitude had not government renewed its attacks on human rights defenders and struck the island in liing memory and families struggled to coe. several vocal critics of the government were taken into custod ithin a few minutes many had lost their loed ones their houses including LST’s own staff member Ruki Fernando just days before their ossessions and their lielihoods. any frantically searched the HRC resolution was adopted. nother was alendran for missing ersons. hildren had lost their arents and the days eakumari who was campaigning against disappearances. hile following the tsunami much confusion and chaos reailed. any Ruki was released the net da eakumari was held in detention foreigners who were holidaying in Sri Lanka also lost their lies. without charge for the rest of the ear. he government also The largest in Sri Lanka — Sarodaya — galanised into indicated that it was not concerned about the pressure from the action as did many hilanthroists. The goernment followed international communit choosing instead to get close to China. It rather than led relief efforts. There were also allegations of also increased arbitrar arrests and detention of dissenters. It was goernment inefficiency and a lack of transarency with regard to in this contet that antiuslim riots erupted in several places in the aid that oured into the country. The ublic and ciil society in une resulting in three deaths and destruction of propert. Sri Lanka was oerwhelming with many eole including Sri itnesses claimed that man of the attackers wore boots and Lankan diasora coming forward to assist the ictims. helmets raising suspicion of government involvement in the attacks. he OHCHR reported incidents of violence against The goernment enacted the Tsunami (Special Provisions) Act in une uslims and against Christians. hile the government to address the issues that arose such as the issuing of death promised to investigate no progress was made in this regard. t certificates for missing ersons custody of children and issues the HRC session the government sought to shift the blame to affecting young ersons and roerty issues. The ill was the uslim communit for starting the attacks. inhala uddhist challenged in the Sureme ourt by the on the grounds that rhetoric continued to dominate at the epense of ethnic and it was an effort to byass the roincial ouncils established under religious minorities giving rise to a culture of fear et again. the thmendment to the onstitution. The Sureme ourt stated that during times of disaster “it becomes incumbent upon the state to formulate and roide direct ational olicy to meet the consequent contingencies….” and that it was untenable that

Human Rights Council Resolution arch . ri anka tate of Human Rights HR . Sri Lanka State of uman Rights SR .

36 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years investigation into alleged serious violations and abuses of human sunami and its termath rights and related crimes b both parties in Sri Lanka…… with ccording to orld ank figures Sri Lankans lost their assistance from relevant eperts and special procedures mandate lies in the tsunami and eole were dislaced. n addition holders.” redictabl this was met with huge resistance from the eole lost their source of lielihood and S million government. In a departure from the previous ear the worth of assets were lost. disaster of this magnitude had not government renewed its attacks on human rights defenders and struck the island in liing memory and families struggled to coe. several vocal critics of the government were taken into custod ithin a few minutes many had lost their loed ones their houses including LST’s own staff member Ruki Fernando just days before their ossessions and their lielihoods. any frantically searched the HRC resolution was adopted. nother was alendran for missing ersons. hildren had lost their arents and the days eakumari who was campaigning against disappearances. hile following the tsunami much confusion and chaos reailed. any Ruki was released the net da eakumari was held in detention foreigners who were holidaying in Sri Lanka also lost their lies. without charge for the rest of the ear. he government also The largest in Sri Lanka — Sarodaya — galanised into indicated that it was not concerned about the pressure from the action as did many hilanthroists. The goernment followed international communit choosing instead to get close to China. It rather than led relief efforts. There were also allegations of also increased arbitrar arrests and detention of dissenters. It was goernment inefficiency and a lack of transarency with regard to in this contet that antiuslim riots erupted in several places in the aid that oured into the country. The ublic and ciil society in une resulting in three deaths and destruction of propert. Sri Lanka was oerwhelming with many eole including Sri itnesses claimed that man of the attackers wore boots and Lankan diasora coming forward to assist the ictims. helmets raising suspicion of government involvement in the attacks. he OHCHR reported incidents of violence against The goernment enacted the Tsunami (Special Provisions) Act in une uslims and against Christians. hile the government to address the issues that arose such as the issuing of death promised to investigate no progress was made in this regard. t certificates for missing ersons custody of children and issues the HRC session the government sought to shift the blame to affecting young ersons and roerty issues. The ill was the uslim communit for starting the attacks. inhala uddhist challenged in the Sureme ourt by the on the grounds that rhetoric continued to dominate at the epense of ethnic and it was an effort to byass the roincial ouncils established under religious minorities giving rise to a culture of fear et again. the thmendment to the onstitution. The Sureme ourt stated that during times of disaster “it becomes incumbent upon the state to formulate and roide direct ational olicy to meet the consequent contingencies….” and that it was untenable that

Human Rights Council Resolution arch . ri anka tate of Human Rights HR . Sri Lanka State of uman Rights SR .

37 Sri Lanka: State of Human Rights: 2018

the state be precluded from doing so under such catastrophic reuild if the were partiall damaged and if the cot of repair wa conditions. n addition the oernment and the signed an elow of the replacement value of the uilding. agreement in une to establish a mechanism to disburse aid and speed up construction and rehabilitation in the orth and ast. ore women lot their live in the tunami than men. hoe who oweer due to arious reasons this greement was neer urvived endured much hardhip a the lot their main implemented. readwinner. omen reported a ene of inecurit and complained of incident of eual harament. ah allowance s highlighted the tsunami also brought other tensions were paid only to the “head of household” although women were to the fore — between deelopment and enironmental protection ale to collect houehold item. he uman ight ommiion and the right to a lielihood. uestions relating to land rights and epreed concern aout ulim widow eing unale to collect right to lielihood of fishermen had to be addressed een though the cah allowance a the had to oerve the mourning period and some of the structures that were destroed were illegall thu unale to leave their reidence. nother iue wa land right constructed. nstead of addressing these tensions the goernment of women in the atern rovince where of the land i owned seemed to totall ignore them and faoured big businesses in women. reconstruction efforts “with little regard paid to either the civilian population or the protection of the environment.” f the ttacs on the edia and edia ersonnel members of the asforce to ebuild the ation that was uring the time of the aapaa preidenc freedom of established si were heads of companies which operate in the epreion and media freedom uffered with newpaper editor coastal tourism industr. eing haraed and with the media facing veral attac. enorhip wa the final traw. ven humanitarian organiation fter the immediate aftermath of the tsunami when there was an that epreed their concern aout the war were verall attaced outpouring of goodwill between the different ethnic communities the government. hroughout the conflict media came under — which led to some optimism that relations would improe — fire with cenorhip impoed from time to time. nformation tensions surfaced with fears about encroachments land grabbing coming from the orth and at wa contantl uect to and the potential loss of land when the goernment allocated land cenorhip a wa warrelated information. edia peronnel were to those affected b the tsunami. hile a coastal buffer one of attaced and ome were aainated. hile attac on media and metres was announced and the goernment prohibited media peronnel were not new the aaination of aantha construction of houses within this one hotels were allowed to icrematunge the editor of unda eader in anuar ent hocwave throughout the country. He was a “prominent figure in the media and described as a ‘virulent critic of the Mahinda

ri ana tate of uman ights .

38 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years the state be precluded from doing so under such catastrophic reuild if the were partiall damaged and if the cot of repair wa conditions. n addition the oernment and the signed an elow of the replacement value of the uilding. agreement in une to establish a mechanism to disburse aid and speed up construction and rehabilitation in the orth and ast. ore women lot their live in the tunami than men. hoe who oweer due to arious reasons this greement was neer urvived endured much hardhip a the lot their main implemented. readwinner. omen reported a ene of inecurit and complained of incident of eual harament. ah allowance s highlighted the tsunami also brought other tensions were paid only to the “head of household” although women were to the fore — between deelopment and enironmental protection ale to collect houehold item. he uman ight ommiion and the right to a lielihood. uestions relating to land rights and epreed concern aout ulim widow eing unale to collect right to lielihood of fishermen had to be addressed een though the cah allowance a the had to oerve the mourning period and some of the structures that were destroed were illegall thu unale to leave their reidence. nother iue wa land right constructed. nstead of addressing these tensions the goernment of women in the atern rovince where of the land i owned seemed to totall ignore them and faoured big businesses in women. reconstruction efforts “with little regard paid to either the civilian population or the protection of the environment.” f the ttacs on the edia and edia ersonnel members of the asforce to ebuild the ation that was uring the time of the aapaa preidenc freedom of established si were heads of companies which operate in the epreion and media freedom uffered with newpaper editor coastal tourism industr. eing haraed and with the media facing veral attac. enorhip wa the final traw. ven humanitarian organiation fter the immediate aftermath of the tsunami when there was an that epreed their concern aout the war were verall attaced outpouring of goodwill between the different ethnic communities the government. hroughout the conflict media came under — which led to some optimism that relations would improe — fire with cenorhip impoed from time to time. nformation tensions surfaced with fears about encroachments land grabbing coming from the orth and at wa contantl uect to and the potential loss of land when the goernment allocated land cenorhip a wa warrelated information. edia peronnel were to those affected b the tsunami. hile a coastal buffer one of attaced and ome were aainated. hile attac on media and metres was announced and the goernment prohibited media peronnel were not new the aaination of aantha construction of houses within this one hotels were allowed to icrematunge the editor of unda eader in anuar ent hocwave throughout the country. He was a “prominent figure in the media and described as a ‘virulent critic of the Mahinda

ri ana tate of uman ights .

39 Sri Lanka: State of Human Rights: 2018

aapasa government.’” He was illed by two assailants on a hile restrictions on ar reporting ere relaed in a the motorcycle ust days before he was due to give evidence against the restriction on access to areas nder control remained. he then efence ecretary who was also the brother of the then nternational ar ssociation folloing a rief mission to resident Mahinda aapasa otabhaya aapasa. hile a ri anka smitted recommendations to the ar ssociation of number of suspects many of whom were lined to the armed ri anka to repeal criminal defamation la and encorage forces were taen into custody no formal charges had been freedom of speech: “The IBA report noted that criminal brought even by the end of the year. he ommittee to rotect defamation las ere contrar to the fndamental hman rights ournalists lists the names of media personnel that were illed set out in the constitution and were an affront to a free media.” during this time but many believe the number illed and he report also condemned attacks on media personnel disappeared to be higher. n an open letter to the resident secrit forces as a a of restricting free speech. nternational ress reedom Mission to ri ana epressed its grave concern “over the ongoing spate of violent attacks against .. issainaagam ho had een nder detention since arch the media” and urged the government to adopt an point plan as convicted on all of his three charges nder the Prevention to redress the perilous press freedom environment. he plan of Terrorism Act on gst the igh ort of included combating impunity releasing ournalists held under the olomo and given the maimm sentence of ears rigoros mergency egulations and later charged under the Prevention of incarceration. his case represented the first instance of a Terrorism Act providing unconditional access to camps and ornalist eing tried and convicted nder for plishing releasing the preliminary results of the investigation into the articles that were critical of the government’s treatment of civilians murder of asantha icrematunge. t noted that since dring this period. he articles ritten in accsed the security forces had been allegedly responsible for idnapping government of killing civilians of refsing them food and medical beating and threatening at least ournalists and media spplies and advocated for the protection of amils in the personnel. ortheast. he rling as condemned internationall. issainaagam as released on ail and pardoned on orld ress reedom a . e spent months in detention.

H httpscp.orgdatailledasiasri lanastatusilledmotiveonfirmedonfirmedtype ri anka tate of man ights ournalistccfipsstartyearendyeargro issainaagam as charged ith to charges nder ssection h of upbylocation the related to statements plished in the Northeastern Monthly intended to httpsrsf.orgennewsopenletterhisecellencypresidentmahinda case the commission of acts of violence and a third charge related to a general raapasa provision of the mergenc eglations specificall in this case referring to bid. the receipt of fnds sed to plish information.

40 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

41 Sri Lanka: State of Human Rights: 2018

In addition to repressing the mainstream media the government roince. The lans drawn with regard to tsunami rehabilitation sought to attack social media claiming that “the final threat to Sri did not seek their iews. Similarl the ceasefire agreement between Lanka’s national securit is the emergence of new technolog the goernment and the LTT did not seek to address the driven media including social media sites such as aceoo grieances of the uslim communit. hen the LTT closed the Twitter and other websites…. ivil ociet organiations ecame ail ru anicut in ul causing much hardshi to the farmers the target of government repression in . A letter was sent downstream the securit forces launched an oeration to the inistr of efence in ul instructing all civil societ “liberate” the area, although the SLMM had already negotiated the organiations to refrain from holding press conferences reoening of the gate. n the ensuing offensie man uslims lost worshops and training for ournalists and issuing press releases. their lies. uring the eriod u to man uslims were orshops organied Transparenc International ri ana for denied their right to franchise with oter lists rarel distributed and investigative ournalists were cancelled after eing disrupted oung oters haing no wa for registration. n addition there organied mos. Although this letter did not carr the weight of were seeral incidents of riots in which the uslim communit was law it was used to endorse such disruptions and intimidate civil the target. societ organiations. n une around am Tamils residing in boarding lodges in ttacs on inorities and uman ights eenders man arts of olombo were eicted b the olice at short notice. aught etween the two warring factions was another largel The were gien onl about minutes to ack their belongings forgotten minorit — the uslim communit who suffered at the and were forced onto buses. The were not informed of the hands of oth parties. The ear saw the escalation of destination. All those without a “valid” reason for residing in communal riots etween the inhalese and the uslim minorit olombo were sent back to their laces of ermanent residence with two uslims eing illed and a numer of uildings and and whether the reason was alid or not was determined b the vehicles destroed. an residents of the awanella area where olice in an arbitrar manner. ue to an outcr b local and the riots too place complained to the uman ights ommission international human rights grous as well as b foreign missions that police inaction led to the riots there. the goernment transorted these eole back to olombo. The entre for olic lternaties filed a fundamental rights etition in The were also hard hit the tsunami. Their plight did not receive the Sureme ourt against these eictions. The Sureme ourt much attention although the predominantl inhait the astern called for an immediate end to the eictions. The rime inister

ri ana: tate of uman ights ‘PSM urges Polls Chief to ensure franchise of expelled Muslims’, ia agara and arana aniffa Towards Recovering Histories of Anti-Muslim Lankamuslim ecember Violence in the Context of Sinhala–Muslim Tensions in Sri Lanka, olomo: httslankanet.wordress.comsmurgesollschiefto International entre for thnic tudies . ensurefranchiseofeelledmuslims

42 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

43 Sri Lanka: State of Human Rights: 2018

made a public apology and the President ordered a probe into the iveihoods Unti , some memers of this commnit incident. owever, Chief overnment hip eyara contined to sffer from disenfranchisement — the ernandopulle ustified the evictions and saw no reason for the passed dring this ear government apology. nvestigations revealed that instructions to granted citienship to peope of Indian origin ho had either een evict had been given by otabhaya aapasa, the efence a permanent resident of Sri Lanka since or ho ere Secretary. descendants of sch a resident hogh this forma ended the proem of citienship, protection of the rights of this commnit umanitarian worers and local human rights groups became the has agged ehind Pantation orkers contine to contend ith target of both parties to the conflict. n alone, isses the ere sected to nder conditions of stateessness humanitarian worers were abducted, disappeared and illed. n Under its internationa treat oigations and nder domestic une two volunteer ed Cross worers were abducted at the egisation specifica he onditions of mpoment of ort ailway Station in Colombo. heir bodies with gunshot Pantation orkers onvention hich as ratified in , the wounds were found the following day in a tea estate in iriella. he state carries some responsiiit for the economic, socia and vehicle in which they were taen was later traced to the aruna ctra rights of the pantation commnities Living conditions on faction. he government, instead of investigating the illings, pantations, hoever, remain e eo those in the rest of the stated that they were an attempt to discredit the government. Lac country. Previous SHR’s have reported on the state of plantation of progress in the case of aid worers of iveihoods in recent ears, sggesting that hosing, access to cean was also criticied by rights groups. he nternational Commission ater and adeate sanitation conditions remain nsatisfactor in of urists C made a statement highlighting the flaws in the man areas ttention to femae orkers in particar is acking investigation and recommended the establishment of an — trade nions have een criticised for oing for pantation independent investigation team. rights ithot sensitivit to gender, meaning that at times provisions for femae orkers on estates — for exampe, asic countr amils ashroom faciities — have een acking Protests for age Six months after Sri Lanka’s Independence, the UNP government increases endre passed the his Act had the effect of disenfranchising millions of Plantation amils who were originally he Pantation commnities have aso sffered for some time at brought to Sri Lana from ndia by the ritish to wor on the tea the eve of oca poitica representation he plantations. Since this time the community has suffered consistent as introdced in to otine the provisions for oca political, civil and socioeconomic deprivation. uman rights issues in this community cannot be understood without reference Sri Lanka State of man ights , p to this Act which has had long lasting implications on plantation

44 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years made a public apology and the President ordered a probe into the iveihoods Unti , some memers of this commnit incident. owever, Chief overnment hip eyara contined to sffer from disenfranchisement — the ernandopulle ustified the evictions and saw no reason for the passed dring this ear government apology. nvestigations revealed that instructions to granted citienship to peope of Indian origin ho had either een evict had been given by otabhaya aapasa, the efence a permanent resident of Sri Lanka since or ho ere Secretary. descendants of sch a resident hogh this forma ended the proem of citienship, protection of the rights of this commnit umanitarian worers and local human rights groups became the has agged ehind Pantation orkers contine to contend ith target of both parties to the conflict. n alone, isses the ere sected to nder conditions of stateessness humanitarian worers were abducted, disappeared and illed. n Under its internationa treat oigations and nder domestic une two volunteer ed Cross worers were abducted at the egisation specifica he onditions of mpoment of ort ailway Station in Colombo. heir bodies with gunshot Pantation orkers onvention hich as ratified in , the wounds were found the following day in a tea estate in iriella. he state carries some responsiiit for the economic, socia and vehicle in which they were taen was later traced to the aruna ctra rights of the pantation commnities Living conditions on faction. he government, instead of investigating the illings, pantations, hoever, remain e eo those in the rest of the stated that they were an attempt to discredit the government. Lac country. Previous SHR’s have reported on the state of plantation of progress in the case of aid worers of iveihoods in recent ears, sggesting that hosing, access to cean was also criticied by rights groups. he nternational Commission ater and adeate sanitation conditions remain nsatisfactor in of urists C made a statement highlighting the flaws in the man areas ttention to femae orkers in particar is acking investigation and recommended the establishment of an — trade nions have een criticised for oing for pantation independent investigation team. rights ithot sensitivit to gender, meaning that at times provisions for femae orkers on estates — for exampe, asic countr amils ashroom faciities — have een acking Protests for age Six months after Sri Lanka’s Independence, the UNP government increases endre passed the his Act had the effect of disenfranchising millions of Plantation amils who were originally he Pantation commnities have aso sffered for some time at brought to Sri Lana from ndia by the ritish to wor on the tea the eve of oca poitica representation he plantations. Since this time the community has suffered consistent as introdced in to otine the provisions for oca political, civil and socioeconomic deprivation. uman rights issues in this community cannot be understood without reference Sri Lanka State of man ights , p to this Act which has had long lasting implications on plantation

45 Sri Lanka: State of Human Rights: 2018

counities to ain access to essential pulic services throuh The maorit reort recognie the nee or oer sharing in local government. Until 2017, though some Plantation Tamil’s laing the rameor or a solution ut also roviing sace or eercised their franchise rihts durin this period the negotiations. The roosals rovie several saeguars incluing ere not leally oliated to serve the counity. he a constitutional court to settle isutes eteen the centre an the suseuent interpretation of this situation has een that estate rovinces an a comrehensive ill o ights. The roosals also anaeent is responsile for the ellein and developent of sought to aress some o the shortcomings o the those that or on the plantations. Since the s hen 1thmenment to the onstitution. The inorit reort retaine copanies ean to privatise conditions on plantations have the rovince as the unit o evolution an reserve aitional fallen. Still today plantations retain the poer of certifyin national oers or the centre. t reecte evolution an recommene the identity card applications and electricity connections. n an emerger o the ortheast Province. n mi2007, the P ile endent to the as passed y Parliaent its on sumission hich relecte the government osition. to aend ters that civil society roups had een aruin aainst the en o the ear, inal roosals o the P ere et to e for alost years. nstitutional and structural arriers continue sumitte relecting the asence o a olitical ill to come u ith to hinder plantations orers access and participation in local a viale solution to the ethnic conlict. overnance ut the aendent as an iportant first step toards a ore active role for Plantation counities in their on n ovemer 200, a ommission o nuir to nvestigate an local political representation. nuire into llege erious iolation o uman ights as estalishe Presiential ecree to investigate 1 cases later onsensus uilding increase to 1 ithin the time erio ugust 1st to ctoer 1,

n the overnent estalished an ll Party Representative 200. n nternational neenent rou o minent Persons onference PR chared ith developin a southern as invite the Presient to oserve the or o the . The consensus on a political devolution pacae that could e the asis rou voice concern over several issues incluing lac o for reneed tals ith the . t had not reached a consensus progress, conflict of interest by the AG’s Department and the at the end of . espite the nae it did not include all political Presiential ecretariat, lac o itness rotection rograms an parties. he proy party the as not invited. fter the limite manate o the . several stalled attepts the PR appointed a panel of eperts consistin of layers pulic servants and scholars. he panel The government also too stes to imlement the . produced to reports in eceer the aority and oever, the ational Plan o ction to mlement the inority reports. P seeme to omit a large numer o the recommenations hich ere critiue the U igh

S Revie ay .

46 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years counities to ain access to essential pulic services throuh The maorit reort recognie the nee or oer sharing in local government. Until 2017, though some Plantation Tamil’s laing the rameor or a solution ut also roviing sace or eercised their franchise rihts durin this period the negotiations. The roosals rovie several saeguars incluing ere not leally oliated to serve the counity. he a constitutional court to settle isutes eteen the centre an the suseuent interpretation of this situation has een that estate rovinces an a comrehensive ill o ights. The roosals also anaeent is responsile for the ellein and developent of sought to aress some o the shortcomings o the those that or on the plantations. Since the s hen 1thmenment to the onstitution. The inorit reort retaine copanies ean to privatise conditions on plantations have the rovince as the unit o evolution an reserve aitional fallen. Still today plantations retain the poer of certifyin national oers or the centre. t reecte evolution an recommene the identity card applications and electricity connections. n an emerger o the ortheast Province. n mi2007, the P ile endent to the as passed y Parliaent its on sumission hich relecte the government osition. to aend ters that civil society roups had een aruin aainst the en o the ear, inal roosals o the P ere et to e for alost years. nstitutional and structural arriers continue sumitte relecting the asence o a olitical ill to come u ith to hinder plantations orers access and participation in local a viale solution to the ethnic conlict. overnance ut the aendent as an iportant first step toards a ore active role for Plantation counities in their on n ovemer 200, a ommission o nuir to nvestigate an local political representation. nuire into llege erious iolation o uman ights as estalishe Presiential ecree to investigate 1 cases later onsensus uilding increase to 1 ithin the time erio ugust 1st to ctoer 1,

S Revie ay .

47 Sri Lanka: State of Human Rights: 2018

ommissioner for man ights in her report hile not ersons aranagama ommission acknoledged the eistence of acnoledging this critie, the goernment reised the A oer , comlaints on missing ersons

lections to the orthern roincial oncil ere held in As part of the government’s good governance commitment, ri eptember hich ere the first since hen then Lanka cosonsorshi of esolution at the resident dissoled the amalgamated orthastern roincial reresented a ideranging commitment b the goernment to oncil ome claim that the elections ere the reslt of transitional justice measures — measures that ere unrecedented international pressre Despite maor incidents inoling he commitment reresented a shift from the a in hich ri election iolence obsered by independent election monitors, the Lanka had engaged ith the uman ights ouncil in the ast and amil ational Alliance A secred an oerhelming maority, contained secific commitments to establish a ommission for inning of the seats n the rn p to the elections ruth, ustice, econciliation and onrecurrence, an ffice for etradicial illings, disappearances and arbitrary arrests and earations, an ffice on issing ersons and a secial council detentions in the orth and ast decreased he goernment ith judicial means to rosecute those ho committed crimes contined to channel resorces into infrastrctre deelopment in during the ar n ecember , initations ere issued to the orth possibly hoping that people old ale that oer secial rocedure mandate holders including the ecial accontability to hman rights he goernment strategy to in aorteur on orture and ecial aorteur on reedom elections by appeasing the international commnity, hoeer, of ression among others) and Sri Lanka’s cooperation with failed as nearly of the otes ent to the A eternal actors interested in facilitating the transitional justice rocess as erceied to be generall more amicable n another departre from recent practice, ri ana cosponsored commitment to repeal the PTA was issued, with Sri Lanka’s a resoltion abot itself at the in t represented ri oreign inister at the time arguing it needed to be brought in line Lanka’s transitional justice agenda, in terms of establishing with ‘contemporary international best practise’. mechanisms on trth, stice, reparations and garantees against nonrecrrence ooperation ith international actors and n anuar , rime inister ickremesinghe aointed an special procedres improed significantly he oreign inister member onsultation ask orce dran from ciil societ also issed a statement that it old ratify the nternational to gauge the public’s perspective on the transitional justice onention for the rotection of All ersons from nforced mechanisms roosed under the esolution Disappearance, and did so in December he oring onsultations ere held beteen une and etember and Grop on nforced Disappearances condcted a isit to ri ana after thousands of submissions, a final reort as handed don in in oember and despite criticisms, the residential ommission to nestigate into omplaints regarding issing

48 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

ommissioner for man ights in her report hile not ersons aranagama ommission acknoledged the eistence of acnoledging this critie, the goernment reised the A oer , comlaints on missing ersons

49 Sri Lanka: State of Human Rights: 2018

anuary . The establishment and success of the T was seen Resolution at this time, which essentially rolled over the by observers as a positive step, with the Special apporteur commitments made in the previous resolution and allowed Sri during his visit in arguing that the T established its Lanka another years to make progress on these same presence broadly and deeply in a relatively short period of time. commitments. owever, criticisms were levelled at the government for the report not being adeuately received — its recommendations were f the nine transitional ustice commitments adopted by the seemingly dismissed, or at the very least have so far failed to government, only two commitments have been both completed influence ongoing conversations about the transitional ustice and implemented. Those mechanisms that have been implemented program. still face criticism. For eample, in May Sri Lanka signed the nternational Convention for the Protection of All Persons from As this government’s time in office draws out, its commitment to nforced isappearance as part of its transitional commitment to the transitional ustice process has begun to be uestioned and is families of the disappeared. An nternational Convention for the now heavily criticised. Public officials continue to renege on their Protection of All Persons from nforced isappearance ill was commitments and have failed on an overwhelming number of then passed through Parliament in , representing the first time occasions to bring about significant change along the lines of their the concept of ‘enforced disappearance’ had been registered in promises. A very small number of cases have been brought domestic legislation. n late , the ffice on Missing Persons through the courts successfully to bring ustice to those who (MP) was mandated, but commissioners were not appointed committed wartime crimes. At the th Session of the in until early . Criticisms have been levelled at both the legislation arch , igh ommissioner for uman ights issued a and the Office that is set up to fulfil the government’s commitment statement to suggest that ‘limited progress’ had been on the to it. The ffice has been criticised for its poor attempts at public commitments made in esolution . The adopted consultation — focus was placed on passing the legislation itself which has led to ongoing issues to do with implementation of its

‘Guide to the Recommendations from the Consultation Task Force (CTF) broad mandate, confidentiality and its linkages to other on Reconciliation Mechanisms,’ PA, httpswww.cpalanka.orgwp accountability mechanisms. n the whole, consultation and contentuploadsuidetoTeport.pdf communication about the transitional ustice process and its ‘Sri Lanka continues to deprive itself of the benefits of Transitional Justice’, olombo, httpslk.one.un.orgnewsfullstatementbypablodegreiffun progress has generally been poor. o progress has been made on specialrapporteuronthepromotionoftruthusticereparationand establishing a udicial mechanism to investigate violations of guaranteesofnonrecurrenceattheconclusionofhisofficialvisit For an analysis of Sri Lanka’s progress on commitments made in the human rights during the war. Resolution, see: Sri Lanka Campaign for Peace &Justice. “Keep the Promise: Monitoring the Government of Sri Lanka’s Commitments for Achieving As part of its pledge, the government promised to repeal the Justice & Reconciliation,” erite esearch, . httpswww.srilankacampaign .orgtakeactionkeepthe promise. revention of Terroris ct (PTA). n its place would be a Counter

50 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

51 Sri Lanka: State of Human Rights: 2018

errorism ill to provide greater protections against torture say that its role has been a eritable roller coaster ride ith many and ill treatment his reform as seen as a e step in eeping to us and dons. uring the early years of the s the Sureme Sri Lanka’s commitments under the resolution in part ourt layed a ery limited role in rotecting rights of eole because of the PTA’s long and tragic history. ut representatives esecially those ho ere illegally detained. This as in large art of civil societ are concerned that earl drafts of this ne ill due to the legal rofession not bringing these cases before the are flaed to the etent that some consider it orse than the Sureme ourt as many human rights layers ere killed or it is set to replace e concerns include the permitting arbitrar threatened during the P urising in the s and its subseuent detention ithout charge for up to one ear and ambiguous brutal suression. rom sending mied signals — such as in the definitions ith respect to hat constitutes terrorism ebate SL case here the ourt held that although freedom of continues on hether the should be repealed altogether and eression should not be narroly interreted it does not hether communit consultation should tae place before the guarantee the right to information er se — the ourt ent on countr decides that it needs a specific ct to cover counterterror to hand don the landmark decision in ialenthiran here the issues not covered in criminal la or under emergenc regulations ourt emhasised that emergency regulations could not be used to n ssistance to and rotection of ictims of rime and ustify illegal actiities. The ourt also said that emergency itnesses ill as also passed during this period enacted ust regulations do not allo for the derogation of legal safeguards before the united nations uman ights ouncil session in arch een in a state of emergency and that they cannot be used as he ill aims to protect victims and itnesses of crimes and grounds for an arresting officer to act on anything less than a provide mechanisms that assist in ensuring their protection fund reasonable susicion. as to be established in order to set up safe houses for itnesses giving evidence t also sought to establish a ational uthorit for n another imortant ruling the Sureme ourt directed the the protection of victims of crime and itnesses hich ould act eartment of mmigration and migration to amend the as the bod to eecute these protections but concerns emerged guidelines adoted by them ith regard to the residence isas soon after the appointment of its members that the group ma issued to foreign male souses as they iolated the euality clause have strong conflicts of interest hen itness came to give under the onstitution. ther landmark decisions include evidence implicating the state or members of the government in ulankulae and others v inister of ndustrial evelopent and others some a t has also been criticised for its inaccessibilit the aala Phoshate ining ase — etensie discussion of international enironmental la rinciles soft la ublic trust he ole o the ureme ourt he upreme ourt of ri ana the onl udicial bod entrusted Sri Lanka State of uman ights . ith protecting fundamental rights of the people has plaed an Feizal Samath, “RightsSri Lanka Sureme ourt ights ender Discriminatory Rule,” htt.isnes.netrightssrilanka unpredictable role over the past ears t ould not be rong to suremecourtrightsgenderdiscriminatoryrule

52 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

53 Sri Lanka: State of Human Rights: 2018

octrine an the rincile o share resonsiility, Suathapala ere registere ith the unit an inictments ere ile in the endis and aa elro Senanaake v handrika andaranaike igh ourt uaratune and thers etensie iscussion o the ulic trust octrine, eecutie oers, ulic urose, enironmental t a time hen the only oy to uhol unamental rights in the imlications o the roect an limits o the oers o the country as the Sureme ourt, the aointment o Sarath resient an asudeva anaakkara v hoks, forer inister Sila as the hie ustice sa a general ecline in the numer o of inance and thers inoling the ultra vires acts o a high raning cases that ere gien leae to rocee, an ere in act aare ulic oicer n the Suathapala endis case, the Sureme ourt relie suseuently he retirement or the emise o ioneer uges remine eeryone that nooy, not even the resident, is aoe the also contriute to this ecline oeer, the inal nail in the la Sureme ourt coin as surely mae y its ecision in the Sinarasa case n the lanmar case o anapathi illai achchavallavan v , r ap, lantation oint, Trincoalee and thers, the Sureme Singarasa as arreste y the Sri anan security orces in uly ourt imlicitly recognise the right to lie y airming the right hile he as sleeing at home along ith other amils not to e isaeare n this case, the Sureme ourt hel that who were “rounded up”). No reasons for arrest were given and the the State is resonsile or the isaearance o ersons hile grou as taen to an rmy cam here they ere accuse o etaine at the rmy am an later resume to e ea he suorting the LTTE. During detention, Singarasa’s hands were ourt hel that i a erson is arreste or hel y the security orces, tie together he as et hanging rom a mango tree an as an suseuently isaears, then it ill e assume that the assaulte y the security orces e as etaine uner the erson as ille y the security orces ecause it as one ithout charges or months e as suecte to torture an ithout an orer o a cometent court, it iolate rticle o illtreatment an hen he as inally rought eore a igh ourt the onstitution his body had visible assault marks. The Judicial Medical Officer’s reort inicate seere inuries n allege conession as eeme he inling numer o unamental rights cases rought eore admissible and the JMO’s medical report was rejected without the Sureme ourt in an thereater seeme to suggest that reason e as conicte ase solely on the allege conession the uiciary as also contriuting to the orsening human rights an sentence to years imrisonment he ourt o eal situation in the country any etitions ere ismisse at the leae airme the coniction ut reuce the sentence to years hile to rocee stage arring aancement to the merits hase the Sureme ourt reuse secial leae to aeal ccoring to the ata rom the issing ersons nit, only nine conictions ha resulte as o er , isaearances e then mae a etition to the uman Rights ommittee alleging iolations o rticle o the R on the right to a

54 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

55 Sri Lanka: State of Human Rights: 2018

fair trial, rticle )c) due to delay of four years between his he oernment estalished a arliamentar Selet conviction and denial of leave to appeal, and rticle . The Committee on Constitutional eorm in and ae it time until ommittee held that there were violations of rticle ), ), ul to reommend reisions to the Constitution he )c) read together with rticle ) and ) and, therefore, the promised reorms inluded strenthenin the undamental rihts state party must provide the author with an effective and proisions udiial reie reormin the eeutie presiden and appropriate remedy, including release or retrial and compensation. the eletoral sstem he mudsman t as amended to simpli the proedure or rinin omplaints to the mudsman hen the author reuested a revisionreview of the decisions of and proided or arieed persons to rin omplaints diretl the Supreme ourt and other courts based on the decision of the uman ights ommittee, all hell broke loose. n a severe blow to he oernment ratiied L Conention o relatin to international human rights law and oversight by the N uman reedom o ssoiation and rotetion o the iht to ranie ights ommittee, the Supreme Court held that Sri Lanka’s and aeded to the Conention on the rotetion o ihts o accession to the Optional rotocol to the was ll irant orkers and their amilies in he oernment unconstitutional. The Supreme ourt appeared to be under the also enated the rotetion o the ihts o ersons ith erroneous assumption that accession granted judicial power to the isailities t o o and the Sri Lanka uman ihts ommittee. The ommittee is not a judicial body and does not Commission t o oth o hih ere adopted in n have any enforcement powers. The Supreme ourt seems to have Sri Lanka ratiied seeral international onentions relatin to recovered somewhat from this awkward position but we may not international terrorism and hostae takin t also ratiied the see the golden era of the Supreme ourt that we had in the late ptional rotool to the Conention on the ihts o the Child s and early s for uite some time. on the inolement o Children in rmed Conlit

ositive tes he thmendment to the Constitution as adopted in n early , the N government ratified the N onvention hih estalished a Constitutional Counil in an eort to ree the against Torture and other ruel, nhuman or Degrading Treatment Commissions reated under that amendment rom politial or unishment. owever, it fell to the new government to intererene hus the Constitutional Counil as hared ith enact enabling legislation to give effect to the onvention within the task o reommendin appointments to independent Sri Lanka. owever, the legislation fell short of its international ommissions suh as the uli Serie Commission the udiial obligations and some important provisions were left out. Sri Lanka Serie Commission the letion Commission the olie also ratified the ague onvention relating to nterountry Commission the rier Commission and the uman ihts doption of hildren in .

56 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years fair trial, rticle )c) due to delay of four years between his he oernment estalished a arliamentar Selet conviction and denial of leave to appeal, and rticle . The Committee on Constitutional eorm in and ae it time until ommittee held that there were violations of rticle ), ), ul to reommend reisions to the Constitution he )c) read together with rticle ) and ) and, therefore, the promised reorms inluded strenthenin the undamental rihts state party must provide the author with an effective and proisions udiial reie reormin the eeutie presiden and appropriate remedy, including release or retrial and compensation. the eletoral sstem he mudsman t as amended to simpli the proedure or rinin omplaints to the mudsman hen the author reuested a revisionreview of the decisions of and proided or arieed persons to rin omplaints diretl the Supreme ourt and other courts based on the decision of the uman ights ommittee, all hell broke loose. n a severe blow to he oernment ratiied L Conention o relatin to international human rights law and oversight by the N uman reedom o ssoiation and rotetion o the iht to ranie ights ommittee, the Supreme Court held that Sri Lanka’s and aeded to the Conention on the rotetion o ihts o accession to the Optional rotocol to the was ll irant orkers and their amilies in he oernment unconstitutional. The Supreme ourt appeared to be under the also enated the rotetion o the ihts o ersons ith erroneous assumption that accession granted judicial power to the isailities t o o and the Sri Lanka uman ihts ommittee. The ommittee is not a judicial body and does not Commission t o oth o hih ere adopted in n have any enforcement powers. The Supreme ourt seems to have Sri Lanka ratiied seeral international onentions relatin to recovered somewhat from this awkward position but we may not international terrorism and hostae takin t also ratiied the see the golden era of the Supreme ourt that we had in the late ptional rotool to the Conention on the ihts o the Child s and early s for uite some time. on the inolement o Children in rmed Conlit

57 Sri Lanka: State of Human Rights: 2018

Commission espite these attempts the appointments to these custo or contro o a uic authorit without having to rovie ommissions did not proeed as epeted he resident reused a reason or reuesting such inormation. ecause this is incue to appoint the person reommended the Constitutional Counil as a unamenta right etitions can e reerre to the ureme as hairman o the letions Commission ther appointments ourt with regar to inringements o the right eecutive or ere delaed hih resulted in some ommissions ein unale to aministrative action. owever the constitutiona right is untion somewhat narrower than the statutor right ecause the etitioner has to estaish that such information is “required for the exercise n the oernment estalished a steerin roup to drat a or protection of a right.” This is a great victory for rights advocates onstitutional harter o rihts he roup as supposed to hae as severa revious attemts to enact a right to inormation aw ha onsultations ountride in an eort to rin reater aareness aie most nota the version rate uner the eaershi o on human rihts issues as ell as rinin people rom dierent ustice merasinghe in an the version searheae ethni and soial roups toether to disuss and aree on the ke iina oragoa in . hie some rovisions in the aw can omponents o the human rihts harter hile the oetie as certain e imrove to aign with internationa stanars its laudale no sins o implementin it ere eident as the ear dre aotion heras a new watershe moment in reation to human to a lose in hihlihtin et aain the lak o enuineness rights rotection in the countr. when it came to the government’s commitment to human rights. hen ri ana signe the tiona rotoco to the he thmendment to the Constitution adopted in pril another avenue oene or ri anans whose rights were vioate introdued a ne rtile hih reads as ollos to see reress rovie the ehauste oca remeies. ter a sow start severa communications have een reerre to the he resident shall e responsile to arliament or the due uman ights ommittee against ri ana. n Ton ichael eerise perormane and dishare o his poers duties and ernando v Sri Lanka the uman ights ommittee oun that the untions under the Constitution and an ritten la inludin the sentence asse the ri ana ureme ourt imosing a one la or the time ein relatin to puli seurit ear rigorous imrisonment term on the etitioner amounte to a vioation o rtice o the on aritrar erivation o th ith the mendment a riht to inormation proision as iert. he ommittee oun that the imosition o a raconian inluded in the Constitution n addition the oernment adopted enat without aeuate eanation was a vioation o rtice iht to normation t in hih reers to the undamental . riht o people to aess inormation hih is in the possession n another communication Sara v the overnent of Sri Lanka the Sri Lanka State o uman ihts p rtile thmendment to the Constitution ommittee oun that ri ana ha vioate rtices an o

58 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

59 Sri Lanka: State of Human Rights: 2018

the ICCPR in relation to the applicant’s son and Article 7 in chapter is devoted to the civil war its aftermath and dilemmas of relation to the applicant and his wife he Committee directed the peace uildin from 77 overnment to pa compensation and the inistr of orein Affairs reuested the uman Rihts Commission of ri ana he chapter on laour rihts focuses mainl on three laour RC to compute the compensation he RC while asin its strules that too place in 7 a elecom manpower strie reasonin on international standards determined the amount manpower strie in the Ruhunu aampura Port and c the strie ased on economic realities in ri ana In another case Susila in the Associated atter anufacturers of Ratmalana All three alani ahanaake and thers represented an that related to hirin manpower from manpower supplin aencies related to the outhern epresswa the uman Rihts Committee he chapter points to how political authorities eploited the was of the view that the authors were not “victims” within the uncertain position of manpower worers to ain political mileae meanin of Article of the ptional Protocol as the had alread It shows that in postwar ri ana economic development seems received compensation for the violation of their rihts under to have trumped over the realisation of human rihts and that Article of the Constitution from the ri ana upreme manpower aencies — which came into eistence in earl s Court Perhaps the most famous case was the Sinarasa case soon after the econom was lieralised — have complicated the referred to aove emploeremploee relationship that eisted prior to that ith the liberalisation of the economy came “flexible” labour which posed verview o vents in a severe challene to the rihts of worers he three strules our chapters in this volume tae stoc of the human rihts discussed in the chapter point to the erosion of not ust laour situation in the countr in 7 in relation to laour rihts ta rights but also economic and social rights of workers: “Thus, the international monitorin of human rihts and udicial worer not onl loses the laor rihts which were achieved throuh interpretation of fundamental rihts In addition a separate workers’ struggles in history, but also is exposed to a wide rane of economic and social crises which are caused loss of employment.”

he chapter on income ta taes a loo at the nland evenue ct o ee Chapter on ld ine in ew ottles Returnin of ld of which ecame operational from April throuh Authoritarianism in the eoieral ra and uman Rihts idura unasinhe and Ishan atawalae ee Chapter uman Rihts and Income a in ri ana hivai eli 7 ee Chapter on Civil ar ar ndin and ilemmas of Peace uildin in ee Chapter on International onitorin of uman Rihts in ri ana in ri ana aadeva anoda 7 inushia issanaae Chapter on ld ine in ew ottles Returnin of ld Authoritarianism in ee Chapter on udicial Interpretation of undamental Rihts inesha the eoieral ra and uman Rihts idura unasinhe and Ishan amararatne Chamara atawalae

60 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years the ICCPR in relation to the applicant’s son and Article 7 in chapter is devoted to the civil war its aftermath and dilemmas of relation to the applicant and his wife he Committee directed the peace uildin from 77 overnment to pa compensation and the inistr of orein Affairs reuested the uman Rihts Commission of ri ana he chapter on laour rihts focuses mainl on three laour RC to compute the compensation he RC while asin its strules that too place in 7 a elecom manpower strie reasonin on international standards determined the amount manpower strie in the Ruhunu aampura Port and c the strie ased on economic realities in ri ana In another case Susila in the Associated atter anufacturers of Ratmalana All three alani ahanaake and thers represented an that related to hirin manpower from manpower supplin aencies related to the outhern epresswa the uman Rihts Committee he chapter points to how political authorities eploited the was of the view that the authors were not “victims” within the uncertain position of manpower worers to ain political mileae meanin of Article of the ptional Protocol as the had alread It shows that in postwar ri ana economic development seems received compensation for the violation of their rihts under to have trumped over the realisation of human rihts and that Article of the Constitution from the ri ana upreme manpower aencies — which came into eistence in earl s Court Perhaps the most famous case was the Sinarasa case soon after the econom was lieralised — have complicated the referred to aove emploeremploee relationship that eisted prior to that ith the liberalisation of the economy came “flexible” labour which posed verview o vents in a severe challene to the rihts of worers he three strules our chapters in this volume tae stoc of the human rihts discussed in the chapter point to the erosion of not ust laour situation in the countr in 7 in relation to laour rihts ta rights but also economic and social rights of workers: “Thus, the international monitorin of human rihts and udicial worer not onl loses the laor rihts which were achieved throuh interpretation of fundamental rihts In addition a separate workers’ struggles in history, but also is exposed to a wide rane of economic and social crises which are caused loss of employment.”

61 Sri Lanka: State of Human Rights: 2018

a human rights lens. The chapter argues that while the new nland onclusion eenue ct is likely to bring a considerable amount of reenue to Looking back at the past 2 years, it was easy to see why this report the state coffers in the short term, it is unlikely to be sustainable in was necessary. It has become an important evaluation of human the long run. rights violations in the country. o group had attempted to do this before. Foreign human rights groups as well as foreign government The chapter on onitoring uman ights in ri anka highlights institutions, including the S State epartment, consulted the that in alone, ri anka ratified three international human report in preparing their own reports. espite the many challenges rights treaties bringing the total of human rights treaties ratified to it faced over the years, LST managed to produce the report sixteen. The author however, notes that “For Sri Lanka, the culminating in this 2th anniversary edition. For this LST deserves eolution of its commitment to international human rights our appreciation. Let us hope LST will continue to produce this frameworks has been anusfaced” — externally, ri anka has report for many more years to come. ratified all the maor human rights treaties. nternally, many discriminatory and contradictory domestic laws and policies ndermining the democratic institutions that are established to continue to operate and many human rights abuses hae gone protect rights of people and to uphold the rule of law is a sure way uninestigated and perpetrators unpunished. The author discuses to erode democracy in any country. It takes years to repair the Sri Lanka’s engagement with treaty bodies — especially, the damage done by such actions. Thus, for example, during the ommittee on limination of ll forms of iscrimination gainst aapaksa era, the onstitutional ouncil was not established due omen, the ommittee on conomic, ocial and ultural ights, to disagreements relating to the appointment of the 10th member and niersal eriodic eiew, all of which took place during to the ouncil. This led to the appointment by the resident of 2017. The author concludes: “It is clear that despite the members of several independent commissions, including the opportunities to delier on promises on human rights and uman ights ommission, eopardising its independent transitional ustice, the goernment still failed to take critical steps functioning. in the right direction. The doublefaced nature of international promises uxtaposed with domestic failures, continued to be the nother area that needed reform relates to elections. lthough a trend in Sri Lanka during 2017.” This essentially captures the arliamentary Select committee on lectoral eform presented its human rights situation in the country, which unfortunately, seems report despite opposition by many political parties, no meaningful to continue to date. action has been taken. The report proposed a combination system with 10 members elected on the first past the post system, 70 on the district proportional representation system and 1 to be appointed from the ational list. inushika issanayake, hapter on nternational onitoring of uman ights in ri anka, .

62 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years a human rights lens. The chapter argues that while the new nland onclusion eenue ct is likely to bring a considerable amount of reenue to Looking back at the past 2 years, it was easy to see why this report the state coffers in the short term, it is unlikely to be sustainable in was necessary. It has become an important evaluation of human the long run. rights violations in the country. o group had attempted to do this before. Foreign human rights groups as well as foreign government The chapter on onitoring uman ights in ri anka highlights institutions, including the S State epartment, consulted the that in alone, ri anka ratified three international human report in preparing their own reports. espite the many challenges rights treaties bringing the total of human rights treaties ratified to it faced over the years, LST managed to produce the report sixteen. The author however, notes that “For Sri Lanka, the culminating in this 2th anniversary edition. For this LST deserves eolution of its commitment to international human rights our appreciation. Let us hope LST will continue to produce this frameworks has been anusfaced” — externally, ri anka has report for many more years to come. ratified all the maor human rights treaties. nternally, many discriminatory and contradictory domestic laws and policies ndermining the democratic institutions that are established to continue to operate and many human rights abuses hae gone protect rights of people and to uphold the rule of law is a sure way uninestigated and perpetrators unpunished. The author discuses to erode democracy in any country. It takes years to repair the Sri Lanka’s engagement with treaty bodies — especially, the damage done by such actions. Thus, for example, during the ommittee on limination of ll forms of iscrimination gainst aapaksa era, the onstitutional ouncil was not established due omen, the ommittee on conomic, ocial and ultural ights, to disagreements relating to the appointment of the 10th member and niersal eriodic eiew, all of which took place during to the ouncil. This led to the appointment by the resident of 2017. The author concludes: “It is clear that despite the members of several independent commissions, including the opportunities to delier on promises on human rights and uman ights ommission, eopardising its independent transitional ustice, the goernment still failed to take critical steps functioning. in the right direction. The doublefaced nature of international promises uxtaposed with domestic failures, continued to be the nother area that needed reform relates to elections. lthough a trend in Sri Lanka during 2017.” This essentially captures the arliamentary Select committee on lectoral eform presented its human rights situation in the country, which unfortunately, seems report despite opposition by many political parties, no meaningful to continue to date. action has been taken. The report proposed a combination system with 10 members elected on the first past the post system, 70 on the district proportional representation system and 1 to be appointed from the ational list. inushika issanayake, hapter on nternational onitoring of uman ights in ri anka, .

63 Sri Lanka: State of Human Rights: 2018

The latest attempt at constitutional reform undertaken by the hie the hnge in goernment nd the demise o the ps current government seems to be at a standstill. Several previous dnst dwned new er in ri n, reent inidents do not attempts had also failed. ublic epresentations ommittee on ugur we or goernment whih me into power on ptorm onstitutional eform was established by a subcommittee of the o good goernne nd trnspren tts ginst reigious abinet in ecember 201. fter islandwide consultations lasting minorities he ontinued nd ethni tensions seem to e a month, and after receiving around 00 submissions, the simmering on the sure he sow pe o inestigtions o ommittee submitted a report to the Steering ommittee on ringing perpetrtors to ustie, nd the trnsition ustie proess onstitutional eform in ay 201. This process highlighted, yet re so use or onern n so ompin out the high ost again, the divided nature of Sri Lankan society and the mistrust o iing nd the sow eonomi progress in the ountr ii among various ethnic groups. For example, alay and Sufi groups soiet groups re oiing onern out the inresed did not want to be identified with Sri Lanka uslims. pcountry inoement o the hinese goernment in mor inrstruture Tamils made representations for recognition as a special group proets suh s the ort it roet tht oud he mor while urghers from the astern rovince wanted to be recognised enironment nd soi ustie rmiitions oreoer, the for their uniue culture. ual treatment was stressed by everybody reent o goernment eetions t whih the ri n odun and many groups, including women’s rights groups, requested the ermun oint , whose eetion mpign ws ed inclusion of socioeconomic rights in the new constitution. This, resident hind ps, won morit o the o however, gave rise to considerable debate as some groups felt that goernment odies, whih shows tht our memories re indeed inclusion of socioeconomic rights would obscure the real issues er short that needed to be tackled in the new constitution, namely, a political solution to the ethnic conflict. Similar to previous attempts at constitutional reform, the current attempt seems to have, yet again, fallen prey to political maneuvering and deal making.

nother point that needs highlighting is the fact that Sri Lanka has generally been good at ratifying international treaties. It is a party to all the maor international human rights treaties. owever, as this report has highlighted over the years, its track record of implementation, both in terms of adopting enabling legislation and implementing it on the ground, has been uite poor.

64 Overview of the Sri Lanka State of Human Rights, 2018: Reminiscing the Past 25 years

CIVIL WAR, WAR ENDING, AND DILEMMAS OF PEACE BUILDING IN SRI LANKA, 1983-2017

Jayadeva Uyangoda

1. Introduction Sri Lanka’s ethno-political civil war, which lasted for twenty-six years, encapsulated a persistent pattern of the country’s post- independence political order: the inability of a democratic polity to create stable political structures for peaceful mediation of competing ethnic aspirations between majority and minority communities. After a protracted civil war and its particularly violent end, this now continues to persist in Sri Lanka as a feature

Jayadeva Uyangoda is Emeritus Professor of Political Science, University of Colombo, Sri Lanka. He retired in 2016 as Senior Professor at the Department of Political Science and Public Policy, University of Colombo. In 2016-2017, he held the Rajni Kothari Chair in Democracy at Centre for the Study of Developing Societies, New Delhi, India. He has published extensively on Sri Lankan politics, particularly on political institutions and processes, caste and politics, democratisation,ethnic conflict and peace processes and state reform. His latest publications are Political Parties in Sri Lanka: Continuity and Change (2018, Author and Co-Editor) and Political Science: A Contemporary Introduction (2018, Author). The author acknowledges with gratitude the critical comments and inputs provided by Alan Keenan.

CIVIL WAR, WAR ENDING, AND DILEMMAS OF PEACE BUILDING IN SRI LANKA, 1983-2017

Jayadeva Uyangoda

Sri Lanka: State of Human Rights: 2018

embedded in Sri Lanka’s ethnocratic state and its priorities he conflict hs the continos reprodction of the conflict dring stalling of recent efforts made to chart ot a postar path of peace and after the war has placed Sri Lanka’s peace building goals in a bilding political reforms and interethnic nderstanding throgh frameork of intractabilit reconciliation and political ealit can be vieed as an epression of a ne postar conndrm the mismatch beteen the present he second component of the argment is abot the fsion of coalition government’s promise to implement a reform ethnocratic and national security dimensions of Sri Lanka’s state programme and its contining inabilit to deliver on the reform after the ar ended in a he ne challenges to peace promise building are embedded in the ways in which Sri Lanka’s state formation conflict beteen Sinhalese and amil ethnonationalist he central argment eplored in this essa has to analtical proects advanced from an ethnocratic to a national secrit state components irst peace bilding goals in Sri Lanka dring and ts ke featre dring the ar as the conflation of ar and peace after the civil ar initiall entailed an agenda of political reforms as mtall constittive processes that not onl sstained the ar for poersharing to address ethnic minorit demands for political bt eventall created conditions for a militar end to the ar ith ealit and rights nce the ar became protracted that agenda a nilateral victor to the Sri Lanka state nce the ar ended the became comple ith the need to address root cases of the Sri Lankan state began to epress eplicitl a alitative conflict as ell as the conseences of the ar that inclded transformation it has been aciring dring the ar that is the resolving hman rights and hmanitarian isses rehabilitation and fsion of its ethnocratic character of the state ith a postar resettlement of the displaced and ar affected commnities de national secrit agenda n ethnocrac is one in hich the state militariation at state and nonstate levels as ell as inter and the political order become the eclsive sites for the political commnit reconciliation fter the ar ended this broad agenda dominance of one ethnic commnit over other politicall of peace bilding became still more comple ith the a in hich sbordinate ethnic commnities iftachel angoda the ar ended ith total militar victor b the state and also eikala he pecliarit of the Sri Lankan case is the massive hmanitarian isses to be addressed in the postar emergence of a national secrit agenda of the state soon after the normaliation process he isses of state reform political ealit ar ended as its dominant polic and ideological orientation of the minorit commnities addressing the hman rights and ar prodcing political otcomes that have led to a thin and minimalist crimes isses throgh a process of transitional stice and version of peace bilding reconciliation beteen the state and the amil people and among commnities assmed ne salience as ell as rgenc he he narrative developed in this chapter is strctred on the internationaliation of the postar peace bilding and the intense folloing themes a political backgrond to the civil ar b domestic resistance it fostered made the postar peace bilding formation and escalation of the ar process c efforts at process entangled ith the formation of a ne phase of the negotiated settlement to the ar and conflict d postar politics

68 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 embedded in Sri Lanka’s ethnocratic state and its priorities he conflict hs the continos reprodction of the conflict dring stalling of recent efforts made to chart ot a postar path of peace and after the war has placed Sri Lanka’s peace building goals in a bilding political reforms and interethnic nderstanding throgh frameork of intractabilit reconciliation and political ealit can be vieed as an epression of a ne postar conndrm the mismatch beteen the present he second component of the argment is abot the fsion of coalition government’s promise to implement a reform ethnocratic and national security dimensions of Sri Lanka’s state programme and its contining inabilit to deliver on the reform after the ar ended in a he ne challenges to peace promise building are embedded in the ways in which Sri Lanka’s state formation conflict beteen Sinhalese and amil ethnonationalist he central argment eplored in this essa has to analtical proects advanced from an ethnocratic to a national secrit state components irst peace bilding goals in Sri Lanka dring and ts ke featre dring the ar as the conflation of ar and peace after the civil ar initiall entailed an agenda of political reforms as mtall constittive processes that not onl sstained the ar for poersharing to address ethnic minorit demands for political bt eventall created conditions for a militar end to the ar ith ealit and rights nce the ar became protracted that agenda a nilateral victor to the Sri Lanka state nce the ar ended the became comple ith the need to address root cases of the Sri Lankan state began to epress eplicitl a alitative conflict as ell as the conseences of the ar that inclded transformation it has been aciring dring the ar that is the resolving hman rights and hmanitarian isses rehabilitation and fsion of its ethnocratic character of the state ith a postar resettlement of the displaced and ar affected commnities de national secrit agenda n ethnocrac is one in hich the state militariation at state and nonstate levels as ell as inter and the political order become the eclsive sites for the political commnit reconciliation fter the ar ended this broad agenda dominance of one ethnic commnit over other politicall of peace bilding became still more comple ith the a in hich sbordinate ethnic commnities iftachel angoda the ar ended ith total militar victor b the state and also eikala he pecliarit of the Sri Lankan case is the massive hmanitarian isses to be addressed in the postar emergence of a national secrit agenda of the state soon after the normaliation process he isses of state reform political ealit ar ended as its dominant polic and ideological orientation of the minorit commnities addressing the hman rights and ar prodcing political otcomes that have led to a thin and minimalist crimes isses throgh a process of transitional stice and version of peace bilding reconciliation beteen the state and the amil people and among commnities assmed ne salience as ell as rgenc he he narrative developed in this chapter is strctred on the internationaliation of the postar peace bilding and the intense folloing themes a political backgrond to the civil ar b domestic resistance it fostered made the postar peace bilding formation and escalation of the ar process c efforts at process entangled ith the formation of a ne phase of the negotiated settlement to the ar and conflict d postar politics

69 Sri Lanka: State of Human Rights: 2018

of peace building and e the return to and retreat from the peace building project under Sri Lanka’s present government. 3. Civil War –Formation and Escalation The origins of Sri Lanka’s ethnic civil war goes back to the years 2. Background 19788 when a low intensity conflict began to take shape between The backdrop of Sri Lanka’s civil war comprises what the academic the Sri Lankan state and several Tamil militant groups in the affna literature began to describe during the late s and early s peninsula. There was a specific political contet to the emergence as the ‘ethnic conflict.’ t reoled around the amil nationalist of Tamil radical militancy during this particular phase of Sri demand for regional autonomy for Sri Lanka’s Tamil minority Lanka’s modern history. Its key features were (a) reconsolidation citizens living in the island’s Northern and Eastern provinces. That of the constitutional foundations of the unitary state amidst Tamil demand was precipitated as a response by amil political elites to nationalist demand for regional autonomy, (b) transition of Tamil moes by the Sinhalese political elites to maintain an ethnic nationalist demand from regional autonomy to separate statehood, maoritarian hold oer the postindependent Sri Lankan state that and (c) radicalization of Tamil nationalist politics with increasing was created by the departing ritish rulers as a unitarist entity he polarization between the established political leadership and youth federalist demand began to be articulated soon after political activists. The government’s repressive lawandorder response to independence in his was also the time when political leaders youth radicalization fuelled political unrest in the North, eventually of neighboring ndia were eploring the framework for re creating conditions for the government to deploy the military to structuring the ndian state by means of a federal constitution Sri uell what Sinhala leaders and the public opinion understood at the Lanka’s trajectory of postcolonial state formation did not go time as an emerging terrorist threat to the state. The government’s through such a reformist path ts traectory was one of inability to politically respond to the Tamil nationalist consolidating the unitary state and simultaneously generating mobilization, organized around the twin slogan of independence resistance and instability and separate statehood, and the radical Tamil nationalist argument that Tamil politics had reached a stage of seeking statehood

he terms used in the academic as well as political discourses till the late through armed struggle, constituted the opposing perspectives that 1970s to refer to were ethnic conflict ‘race problem’ or ‘communal problem.’ had been constructed by the two sides to the emerging civil war by Roberts (1978) is one of the earliest to use the concept ‘ethnic conflict’ in the the early 1980s. contet of Sri Lanka few years later the olume Ethnicity and Social Change published in indicated that it had gained currency among liberal as well as Left academics as well The antiTamil riots of uly 198 and the manner in which the Among the early works that deal with this early phase of Sri Lanka’s ethnic politics are oward riggins Ceylon: Dilemmas of a New Nation, Princeton government handled the riots further escalated the tension that had rinceton niersity ress obert earney Language and Communalism already arisen over the course of decades of sporadic ethnic in the Politics of Ceylon urham uke niersity ress and ichael violence. The government took an unsympathetic stand towards Roberts, “Ethnic Conflict in Sri Lanka and Sinhalese erspecties arriers to Accommodation,” Modern Asian Studies, the Tamils – victims of countrywide violence that saw hundreds

70 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 of peace building and e the return to and retreat from the peace building project under Sri Lanka’s present government. 3. Civil War –Formation and Escalation The origins of Sri Lanka’s ethnic civil war goes back to the years 2. Background 19788 when a low intensity conflict began to take shape between The backdrop of Sri Lanka’s civil war comprises what the academic the Sri Lankan state and several Tamil militant groups in the affna literature began to describe during the late s and early s peninsula. There was a specific political contet to the emergence as the ‘ethnic conflict.’ t reoled around the amil nationalist of Tamil radical militancy during this particular phase of Sri demand for regional autonomy for Sri Lanka’s Tamil minority Lanka’s modern history. Its key features were (a) reconsolidation citizens living in the island’s Northern and Eastern provinces. That of the constitutional foundations of the unitary state amidst Tamil demand was precipitated as a response by amil political elites to nationalist demand for regional autonomy, (b) transition of Tamil moes by the Sinhalese political elites to maintain an ethnic nationalist demand from regional autonomy to separate statehood, maoritarian hold oer the postindependent Sri Lankan state that and (c) radicalization of Tamil nationalist politics with increasing was created by the departing ritish rulers as a unitarist entity he polarization between the established political leadership and youth federalist demand began to be articulated soon after political activists. The government’s repressive lawandorder response to independence in his was also the time when political leaders youth radicalization fuelled political unrest in the North, eventually of neighboring ndia were eploring the framework for re creating conditions for the government to deploy the military to structuring the ndian state by means of a federal constitution Sri uell what Sinhala leaders and the public opinion understood at the Lanka’s trajectory of postcolonial state formation did not go time as an emerging terrorist threat to the state. The government’s through such a reformist path ts traectory was one of inability to politically respond to the Tamil nationalist consolidating the unitary state and simultaneously generating mobilization, organized around the twin slogan of independence resistance and instability and separate statehood, and the radical Tamil nationalist argument that Tamil politics had reached a stage of seeking statehood

71 Sri Lanka: State of Human Rights: 2018

killed thousands of homes and businesses destroyed and tens of thousands made refugees and appeared to ustify violence purely on ethnic maoritarian grounds. Thus the ethnic riots of uly One crucial part of the story of Sri Lanka’s ethnic conflict and war had a series of conseuences that were to change the course of Sri has een the attempts made to rin parties to the ar to the Lanka’s contemporary history. Firstly, riots marked the neotiation tale and persade them to sin an eternally mediated culmination of a long process of alienation between Tamil citiens peace treaty. he first sch attempt as made y the Indian and the Sri Lankan state producing a point of no return in their overnment in , at a very early stae of the ar. he Indian relationship with the state. Secondly the riots provided Tamil overnment seems to have een concerned y the escalation of Sri militant groups a forceful ustification of their campaign for an Lanka’s internal war due to three reasons: (a) the problem of Tamil armed struggle for secession. Thirdly the riots opened up the space refee inflo to Soth India political sympathy developed in for India’s intervention in Sri Lanka’s ethnic conflict and its India for the Sri Lankan amils as victims of the Sri Lankan eventual internationaliation. gainst this backdrop the government’s aggressive ethnic majoritarian policies, and c the government further hardened its approach to the ethnic conflict. apprehension of npredictale political conseences for India of Through the th mendment to the onstitution even the Sri Lanka’s separatist war. India sin its diplomatic and political advocacy of separation became an offence. The th mendment resorces roht the Sri Lankan overnment and amil parties to forced the leadership of the Tamil nited Liberation ront the neotiation tale in st . he talks ere held in (TL) the main Tamil parliamentary party to flee to India and himp, the capital of htan. oever, the talks ended in failre, live in eile. That effectively cleared the way for the Sri Lankan ecase oth sides came to the tale seekin a nilateral political state and the Tamil armed groups to escalate the war leaving no and propaanda advantae. esides, the dynamics of the conflict political space for moderate political alternatives to the war. at this early stae of the civil ar ere sch that the Sri Lankan state and the amil militant rops ere prsin nilateral ccording to official overnment statistics the number of those killed was soltions y military means. while the number inured was . The number of robberies was . owever unofficial reports say that the number killed was and the number of Tamils displaced was around . f the buildings destroyed S. . ni, Pangs of Proximity: India and Sri Lanka’s Ethnic Crisis, e elhi were houses and commercial establishments. The value of S , rishna, Sankaran, Postcoonia Inscritis: India Sri Lanka and th property damaged or destroyed was estimated to be nearly million .S. stion of ationhood, inneapolis and London niversity of innesota dollars. Press 1999) and Krishna Sankaran, India’s Role in Sri Lanka’s Conflict, Marga httpwww.lankaweb.comnewsitemsblackulyyears onoraph , olomo ara Institte and artha hosh, Ethnicity ago rss ationaism: otion iscors in Sri Lanka, olomo iitha apa Sith mendment to the onstitution in ugust imposed a lishers 2003) are good sources for different interpretations of India’s prohibition on the violation of territorial integrity. involvement in Sri Lanka’s conflict. See chapter of etheshwaran Loganathan Sri Lanka, Lost Opportunities: mon the literatre on peace efforts are ethesharan Loanathan, Sri Past Attempts at Resolving Ethnic Conflict, (olombo niversity of olombo Lanka Lost ortnitis: Past ttmts at soing Ethnic Confict, olomo ) pp. . niversity of olomo , . . e Silva, aing th hirind: Ethnic

72 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 killed thousands of homes and businesses destroyed and tens of thousands made refugees and appeared to ustify violence purely on ethnic maoritarian grounds. Thus the ethnic riots of uly One crucial part of the story of Sri Lanka’s ethnic conflict and war had a series of conseuences that were to change the course of Sri has een the attempts made to rin parties to the ar to the Lanka’s contemporary history. Firstly, riots marked the neotiation tale and persade them to sin an eternally mediated culmination of a long process of alienation between Tamil citiens peace treaty. he first sch attempt as made y the Indian and the Sri Lankan state producing a point of no return in their overnment in , at a very early stae of the ar. he Indian relationship with the state. Secondly the riots provided Tamil overnment seems to have een concerned y the escalation of Sri militant groups a forceful ustification of their campaign for an Lanka’s internal war due to three reasons: (a) the problem of Tamil armed struggle for secession. Thirdly the riots opened up the space refee inflo to Soth India political sympathy developed in for India’s intervention in Sri Lanka’s ethnic conflict and its India for the Sri Lankan amils as victims of the Sri Lankan eventual internationaliation. gainst this backdrop the government’s aggressive ethnic majoritarian policies, and c the government further hardened its approach to the ethnic conflict. apprehension of npredictale political conseences for India of Through the th mendment to the onstitution even the Sri Lanka’s separatist war. India sin its diplomatic and political advocacy of separation became an offence. The th mendment resorces roht the Sri Lankan overnment and amil parties to forced the leadership of the Tamil nited Liberation ront the neotiation tale in st . he talks ere held in (TL) the main Tamil parliamentary party to flee to India and himp, the capital of htan. oever, the talks ended in failre, live in eile. That effectively cleared the way for the Sri Lankan ecase oth sides came to the tale seekin a nilateral political state and the Tamil armed groups to escalate the war leaving no and propaanda advantae. esides, the dynamics of the conflict political space for moderate political alternatives to the war. at this early stae of the civil ar ere sch that the Sri Lankan state and the amil militant rops ere prsin nilateral ccording to official overnment statistics the number of those killed was soltions y military means. while the number inured was . The number of robberies was . owever unofficial reports say that the number killed was and the number of Tamils displaced was around . f the buildings destroyed S. . ni, Pangs of Proximity: India and Sri Lanka’s Ethnic Crisis, e elhi were houses and commercial establishments. The value of S , rishna, Sankaran, Postcoonia Inscritis: India Sri Lanka and th property damaged or destroyed was estimated to be nearly million .S. stion of ationhood, inneapolis and London niversity of innesota dollars. Press 1999) and Krishna Sankaran, India’s Role in Sri Lanka’s Conflict, Marga httpwww.lankaweb.comnewsitemsblackulyyears onoraph , olomo ara Institte and artha hosh, Ethnicity ago rss ationaism: otion iscors in Sri Lanka, olomo iitha apa Sith mendment to the onstitution in ugust imposed a lishers 2003) are good sources for different interpretations of India’s prohibition on the violation of territorial integrity. involvement in Sri Lanka’s conflict. See chapter of etheshwaran Loganathan Sri Lanka, Lost Opportunities: mon the literatre on peace efforts are ethesharan Loanathan, Sri Past Attempts at Resolving Ethnic Conflict, (olombo niversity of olombo Lanka Lost ortnitis: Past ttmts at soing Ethnic Confict, olomo ) pp. . niversity of olomo , . . e Silva, aing th hirind: Ethnic

73 Sri Lanka: State of Human Rights: 2018

espite the failure of the Thimpu talks, the Indian government groups and their entry to parliamentary politics and c continued to be engaged with parties to the Sri Lankan conflict in establishment of a system of proincial councils as the institutional order to eplore a framework for terminating the war and a structure for deolution which was also to constitute the possible political settlement to the conflict. Through persistent and constitutional framework for the proposed political solution. ith difficult diplomatic efforts, by the middle of 19, the Indian these three components at its core the ndoLanka ccord marked government of Rajiv andhi managed to achieve two outcomes a politically significant moment in Sri Lanka’s postcolonial politics (a) to design a political framework of powersharing in Sri Lanka as well as in the conflict process. Ecept for the LTTE all other as the basis of negotiations and a possible constitutional direct parties8 to the conflict and war accepted the political solution settlement, and (b) to persuade the Sri Lankan government as well as conceied in the ccord. The Tamil rebel groups that accepted as the Tamil rebel groups – whose eiled leaders were operating the ccord gae up arms and the path of armed struggle accepted from South India at that time – to give up the military option and the system of deolution proposed in the ccord and eentually in turn to accept a political solution to the conflict. The Indian oined the parliamentary process. Eually important was the fact Prime Minister’s efforts bore fruit in July 1987 when he signed a that Sri Lanka’s government leaders acknowledged the point that peace accord with Sri Lanka’s President J. R. Jayewardene. ethnic insurgency was not ust a terrorist challenge to the state but an epression of ethnic minority grieances warranting a non Known as the IndoLanka ccord, this bilateral interstate military approach to its termination.9 Linked to this point was the agreement between Indian and Sri Lankan leaders envisaged: (a) recognition by a leading faction of the Sinhalese political leadership termination of the war, with India as the guarantor for the de that restructuring of Sri Lanka’s unitary state was necessary for a militariation process (b) surrender of weapons by the militant political solution acceptable to the Tamil minority. The proposed system of proincial councils indeed marked a maor policy shift Confict and Ethnic Poitics in Sri Lanka, (ew elhi: Penguin ooks 199) and towards such state restructuring.1 K. M. e Silva, Sri Lanka: Ethnic Confict anagmnt and sotion, (Kandy: International Centre for thnic Studies 1999), Kumar Rupesinghe ed. gotiating Pac in Sri Lanka: airs and Lssons, Two olumes, (Colombo: 8 Tamil militant groups such as the PLTE TEL EPRL ERS and oundation for Coeistence 200), Partha hosh, Ethnicity rss ationaism: EL were the other parties otion iscors in Sri Lanka, (Colombo: ijitha apa Publishers 2003), ohn httpswww.researchgate.netpublication11719onflictinSriLanka ooneratne, gotiating ith igrs LE : i from th Scond StudyonPeaceegotiationsduringtheiilar1988 o (Pannipitiya: Stamford Lake 200) , nton alasingham, ar and Pac: 9 ddress by President handrika andaranaike umaratunga of the rmd Strgg and Pac Efforts of Liration igrs (Mitcham, ngland: arima emocratic Socialist Republic of Sri Lanka at the ighleel Plenary Meeting Publishing Ltd. 200), Ketheshwaran Ketheshwaran Loganathan, Sri Lanka of the eneral ssembly of the nited ations ew ork 1 September Lost ortnitis: Past ttmts at soing Ethnic Confict ( Colombo: niversity httpwww.un.orgwebcastsummitstatements1sri911eng of Colombo 199) was a participant in the Thimpu talks and alasingham was .pdf LTTE’s chief negotiator in almost all peace talk events. ooneratne, a Sri 1 The Thirteenth mendment to the onstitution of 1978 enacted in 1987 Lankan diplomat, as the title of his book suggests, has been closely watching proides the framework for the deolution of political power through a system the process as a government official. of Proincial ouncils P in Sri Lanka.

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75 Sri Lanka: State of Human Rights: 2018

t the same time the ndoLanka ccord from the moment of eeping orces I fought against the LTT till early its signing in olomo faced a numer of unforeseen challenges when they were forced to withdraw by Sri Lanka’s new President, indicating the fragility of peace in Sri Lanka’s civil war. Resistance R. remadasa. to the ccord soon assumed the character of an armed reellion in Sri Lanka’s South. Sinhalese nationalist groups vehemently resident remadasa made the third attempt towards a negotiated opposed the Accord on the argument that it violated Sri Lanka’s settlement with the LTT. eace talks egan informally in sovereignty and independence he ruling nited ational arty eruary and ended in failure in early . remadasa faced an internal division and dissention within the second LTT talks were not facilitated y an eternal actor. oth sides level of party leadership mong the forces of opposition the took up the stand that they could reach a peace deal without any anatha imkthi Pramna a radical Sinhalese underground third party involvement. owever these talks collapsed without movement launched a revolt against the government and it soon producing any significant outcome when the LTT unilaterally spread across most of the country enoying some popular acking resumed hostilities in June 1990. Sri Lanka’s relapse to war for the hus developed a second parallel insurgency when attempts were third time after aorted peace talks saw further escalation of eing made to resolve the amil ethnic insurgency owever violence. The assassination of resident remadasa on ay despite resistance violence and unfolding political crisis the allegedly y the LTT was a maor landmark in the post government of resident ayewardene managed to get the peace talks reintensification of war. President Premadasa’s parliamentary sanction for the constitutional amendment that assassination had pushed the government into a hardline estalished provincial councils midst political uncertainty the position in its response to the LTT. Reescalation of war was the L refused to surrender its weapons as envisaged y the ndo inevitale outcome of the reakdown of the engagement etween Lanka accord hat compelled the ndian government the the government and the LTT. guarantor of the peace ccord to deploy its military forces for peace enforcement in Sri Lanka hat led to the collapse of the resident handrika umaratunga who ecame the new leader of peace accord and the resumption of war with the new dimension the Sri Lanka Freedom Party, led a new coalition called People’s that the ndian government the peacemaker too ecame a direct Alliance A and won the parliamentary and presidential elections party to Sri Lanka’s ethnic conflict and war. The Indian peace held in August and ovemer respectively. er coalition government was a road multiethnic alliance with direct and httpswwwlawnetgovlkthirteenthamendmenttothe indirect participation of Tamil and uslim parties. Left parties constitution he ndoSri Lanka eace ccord was signed in olomo on uly were also its coalition partners. The new coalition had pledged etween ndian rime inister aiv andhi and Sri Lankan resident during the election that in power it would end the war through ayewardene negotiated political settlement with the LTT. The peace pledge httpspeacemakerunorgsitespeacemakerunorgfilesL ndoLankaccordpdf had received popular support as well enaling umaratunga to

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77 Sri Lanka: State of Human Rights: 2018

win the Presidential election held in oember 199 with relatie with the ailure o peace initiative with the the ease. Soon after formin the oernment, umaratuna initiated constitutional initiative or enhanced devolution o the A communication with the L and inited its leaders to peace government ailed. talks. y the end of 199, the two sides had accomplished adeuate preparatory work to launch a new phase of peace neotiations. he inailit o the Kumaratunga government to tae its devolution proposals orward in 1995 was due to a comination o s a part of confidence buildin measures, the oernment and the several adverse actors. he intensiication o the war with the L sined a cessation of hostilities areement on January , waened the government’s argument for a negotiated 199. series of letters was echaned between President political settlement with the . n that contet the umaratuna and the L leader, elupillai Prabhakaran. government epected to advance its overall constitutional reorm lthouh the new peace initiatie bean with a sense of optimism, pacage so that the peace process could e revised once the legal within four months, and after three rounds of direct meetins ramewor o a political settlement was constitutionalied. between deleation of the two sides, talks ended in pril 199, owever the government had to negotiate the insurmountale when the L unilaterally returned to war. key positie constitutional ostacle o securing the necessar twothirds outcome of the peace process launched by the umaratuna maorit in arliament through the support o the the main oernment was the acceptance by the oernment that the opposition part in arliament. he plaing its usual role o eistin framework of deolution, as formulated in the 1th an uncooperative opposition succeeded in undermining mendment, needed epansion. hat realiation was epressed in Kumaratunga’s constitutional reform initiative, when a new the deolution proposals made public by the umaratuna constitutional drat1 was presented to arliament in 1. government in August 1995. Known as ‘August 1995 proposals,’1 the new deolution offer enisaed a substantial reworkin of the During the last stage of President Kumaratunga’s administration 1th mendment to enhance powers of the proincial councils. a new idea entered Sri Lanka’s policy discourse on peace. That was his was the period in which the concept ‘13 plus’ also emerged to aout the possile role or a mediator outside the Asian region to indicate the demands as well as the need for more reional acilitate the resumption o negotiations etween the government autonomy beyond the framework of 1thmendment.1Parallel and the LTTE. This was the beginning of Norway’s involvement in Sri Lanka’s peace attempts. Amidst intensified war, both the and the government indicated to the orwegians their 1httpold.satp.orsatportpcountriesshrilankadocumentpaperskumar atunadeolution.htm 1 . Suryanarayan, Sri Lanka and th th mndmnt: ami isnchantmnt nstitute of Peace and onflict Studies, July 01 httpswww.files.eth.chisn11S1ebate10eSSL 1httpwww.ipsnews.net1politicssrilanauncertainthurtingan 1mendment.pdf alreadalteringeconom

78 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 win the Presidential election held in oember 199 with relatie with the ailure o peace initiative with the the ease. Soon after formin the oernment, umaratuna initiated constitutional initiative or enhanced devolution o the A communication with the L and inited its leaders to peace government ailed. talks. y the end of 199, the two sides had accomplished adeuate preparatory work to launch a new phase of peace neotiations. he inailit o the Kumaratunga government to tae its devolution proposals orward in 1995 was due to a comination o s a part of confidence buildin measures, the oernment and the several adverse actors. he intensiication o the war with the L sined a cessation of hostilities areement on January , waened the government’s argument for a negotiated 199. series of letters was echaned between President political settlement with the . n that contet the umaratuna and the L leader, elupillai Prabhakaran. government epected to advance its overall constitutional reorm lthouh the new peace initiatie bean with a sense of optimism, pacage so that the peace process could e revised once the legal within four months, and after three rounds of direct meetins ramewor o a political settlement was constitutionalied. between deleation of the two sides, talks ended in pril 199, owever the government had to negotiate the insurmountale when the L unilaterally returned to war. key positie constitutional ostacle o securing the necessar twothirds outcome of the peace process launched by the umaratuna maorit in arliament through the support o the the main oernment was the acceptance by the oernment that the opposition part in arliament. he plaing its usual role o eistin framework of deolution, as formulated in the 1th an uncooperative opposition succeeded in undermining mendment, needed epansion. hat realiation was epressed in Kumaratunga’s constitutional reform initiative, when a new the deolution proposals made public by the umaratuna constitutional drat1 was presented to arliament in 1. government in August 1995. Known as ‘August 1995 proposals,’1 the new deolution offer enisaed a substantial reworkin of the During the last stage of President Kumaratunga’s administration 1th mendment to enhance powers of the proincial councils. a new idea entered Sri Lanka’s policy discourse on peace. That was his was the period in which the concept ‘13 plus’ also emerged to aout the possile role or a mediator outside the Asian region to indicate the demands as well as the need for more reional acilitate the resumption o negotiations etween the government autonomy beyond the framework of 1thmendment.1Parallel and the LTTE. This was the beginning of Norway’s involvement in Sri Lanka’s peace attempts. Amidst intensified war, both the and the government indicated to the orwegians their 1httpold.satp.orsatportpcountriesshrilankadocumentpaperskumar atunadeolution.htm 1 . Suryanarayan, Sri Lanka and th th mndmnt: ami isnchantmnt nstitute of Peace and onflict Studies, July 01 httpswww.files.eth.chisn11S1ebate10eSSL 1httpwww.ipsnews.net1politicssrilanauncertainthurtingan 1mendment.pdf alreadalteringeconom

79 Sri Lanka: State of Human Rights: 2018

willingness to return to talks under their auspices. This shift of ceasefire agreement facilitated y Norway was signed on Feruary position by the warring parties occurred in . owever, a 22, 2002. The working of the ceasefire was to e suected to controversy soon erupted on the uestion of a ceasefire agreement international monitoring. There was also highlevel participation as a prelude to talks. hile the LTTE proposed a ceasefire as a by the Norwegian government in the facilitator’s role with a confidencebuilding step towards normaliation, the government government minister, rik olheim, personally giving it political obected to a ceasefire and suggested talks to resume without leadership. The new peace process, initiated y the UN letting up the war. The government’s stand rested on the government, enoyed much pulic support as well. n fact, the assumption that the LTTE was proposing a ceasefire as a prelude UN, in its parliamentary election campaign of ecemer 200, to talks as ploy to regroup and rearm its cadres and regain its had pledged to resume peace negotiations with the LTT and military capabilities that had been weakened by the government’s make a fresh attempt to ring aout a political settlement to the high intensity offensive. esides, the handrika Kumaratunga ethnic conflict. The UNP’s peace promise had elicited a supportive government had taken up the position, after the negative pulic response in inhalese, Tamil and uslim communities as eperience of peace talks in , that negotiations would be held well, indicating that the cyclical condition of war weariness had set only with a militarily weakened LTTE, and without a ceasefire in in again in Sri Lanka’s public consciousness. force. Four rounds of talks were held outside ri Lanka. nitially there The anticipated Norwegian role as mediatorfacilitator in Sri were signs that the two sides were actually moving in the direction Lanka’s peace efforts took a dramatically new turn in early 2002 of signing a peace agreement. The LTTE’s chief negotiator, Anton soon after a new coalition government led by the NP was formed alasingham, even claimed that the LTT was no longer working in December . Norwegians were invited to play that role by towards ‘external selfdetermination’, and, therefore, ready to the LTTE as well as the new government headed by the new Prime explore a solution worked out on the principle of ‘internal self inister anil ickremasinghe. oth sides also indicated an determination.’ This marked an important shift in the LTTE’s eagerness to sign a peace deal within a definite time frame. The https:www.c.comsinhalahighlightsstory2000200222antonsp Alan ullion, oray and th ac rocss in Sri Lanka, Sept. , eech.shtml httpswww.researchgate.netscientific n order to institutionalie international involvement in the peace process contributionsAlanullion the international community created forums. key mechanism that was Jayadeva Uyangoda, “GovernmentLTTE Negotiation Attempt of created was the onor CoChairs through Norwegian Facilitation: Context, Complexities and Lessons,” in ringing together some of the main actors involved in the peace process: U, Kumar upesinghe ed., gotiating Pac in Sri Lanka: airs and Lssons, Two U, Norway and Japan. olumes olombo oundation for oeistence pp. provides a https:www.cpalanka.orgwp detailed account of this controversy. ark Salter, To End a Civil War: Norway’s contentuploads200NTNTNLTN20F20T Pac Engagmnt in Sri Lanka London . urst offers an account of the 2020LNN20C20C20 broad contet in which the controversy arose. 20irak20aheem20and20ethesh20Loganathan.pdf

80 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 willingness to return to talks under their auspices. This shift of ceasefire agreement facilitated y Norway was signed on Feruary position by the warring parties occurred in . owever, a 22, 2002. The working of the ceasefire was to e suected to controversy soon erupted on the uestion of a ceasefire agreement international monitoring. There was also highlevel participation as a prelude to talks. hile the LTTE proposed a ceasefire as a by the Norwegian government in the facilitator’s role with a confidencebuilding step towards normaliation, the government government minister, rik olheim, personally giving it political obected to a ceasefire and suggested talks to resume without leadership. The new peace process, initiated y the UN letting up the war. The government’s stand rested on the government, enoyed much pulic support as well. n fact, the assumption that the LTTE was proposing a ceasefire as a prelude UN, in its parliamentary election campaign of ecemer 200, to talks as ploy to regroup and rearm its cadres and regain its had pledged to resume peace negotiations with the LTT and military capabilities that had been weakened by the government’s make a fresh attempt to ring aout a political settlement to the high intensity offensive. esides, the handrika Kumaratunga ethnic conflict. The UNP’s peace promise had elicited a supportive government had taken up the position, after the negative pulic response in inhalese, Tamil and uslim communities as eperience of peace talks in , that negotiations would be held well, indicating that the cyclical condition of war weariness had set only with a militarily weakened LTTE, and without a ceasefire in in again in Sri Lanka’s public consciousness. force. Four rounds of talks were held outside ri Lanka. nitially there The anticipated Norwegian role as mediatorfacilitator in Sri were signs that the two sides were actually moving in the direction Lanka’s peace efforts took a dramatically new turn in early 2002 of signing a peace agreement. The LTTE’s chief negotiator, Anton soon after a new coalition government led by the NP was formed alasingham, even claimed that the LTT was no longer working in December . Norwegians were invited to play that role by towards ‘external selfdetermination’, and, therefore, ready to the LTTE as well as the new government headed by the new Prime explore a solution worked out on the principle of ‘internal self inister anil ickremasinghe. oth sides also indicated an determination.’ This marked an important shift in the LTTE’s eagerness to sign a peace deal within a definite time frame. The https:www.c.comsinhalahighlightsstory2000200222antonsp Alan ullion, oray and th ac rocss in Sri Lanka, Sept. , eech.shtml httpswww.researchgate.netscientific n order to institutionalie international involvement in the peace process contributionsAlanullion the international community created forums. key mechanism that was Jayadeva Uyangoda, “GovernmentLTTE Negotiation Attempt of created was the onor CoChairs through Norwegian Facilitation: Context, Complexities and Lessons,” in ringing together some of the main actors involved in the peace process: U, Kumar upesinghe ed., gotiating Pac in Sri Lanka: airs and Lssons, Two U, Norway and Japan. olumes olombo oundation for oeistence pp. provides a https:www.cpalanka.orgwp detailed account of this controversy. ark Salter, To End a Civil War: Norway’s contentuploads200NTNTNLTN20F20T Pac Engagmnt in Sri Lanka London . urst offers an account of the 2020LNN20C20C20 broad contet in which the controversy arose. 20irak20aheem20and20ethesh20Loganathan.pdf

81 Sri Lanka: State of Human Rights: 2018

earlier position of hard bargaining at the negotiation table. At the few months earlier taken a ‘minimalist’ position on the extent of very first round of peace talks held in angkok, the LTTE power of the interim government, could not offer a constructive gave the impression that a negotiated political settlement was political response to the LTTE’s ‘maximalist’ agenda. Prospects for actually on its agenda, although the skeptics immediately expressed the resumption of talks ecame diminished, as the gulf etween doubts about it. owever, the peace process took an unexpected the positions of the government and the LTTE on an interim and sudden turn in April when the LTTE refused to take part solution progressively widened. The LTTE’s ISGA proposals also in further talks, making the allegation that the government was strengthened the Sinhala nationalist argument against any political slow in implementing the promises made at the talks. esponding understanding with the LTTE. Many saw the proposals confirming to international pressure to return to the talks, the LTTE stated in their elief that the LTTE, despite its occasional peace overtures, ay that it would reconsider the boycott only if the had in fact een working to achieve its ultimate oective of government was ready to discuss proposals for in interim solution realiing a separate state through secession. or skeptics, the ISGA in the form of an interim selfgoverning authority for the Northern proposals were a mere pretext employed y the LTTE to ring the and Eastern provinces. negotiations to a stage of terminal crisis and then ustify a new military offensive. A new debate on an interim selfgoverning authority thus erupted while the ceasefire agreement was coming under severe stress. n The crisis of the Norwegianled peace initiative had its political ay and une , the UNP government submitted to the LTTE repercussions at the level of the government as well. Within days two proposals for an interim government in the North and East, of the ISGA proposals eing made pulic, President handrika but the LTTE reected them as inadeuate to form the basis for umaratunga dismissed the UNP government’s defence, foreign, the resumption of negotiations. n ctober , the LTTE and media ministers and appointed memers of her Sri Lanka presented to the government, through the Norwegian Ambassador reedom Party SLP as new ministers, ustifying the move on the in olombo, its own proposals for an nterim Selfoverning argument that national security and sovereignty were facing an Authority SA. These proposals appeared to have been based imminent threat y the Wikremasinghe government’s inept on a new principle of extensive regional autonomy akin to handling of the new crisis. Within two months, the President took confederalism. t became clear that the government, which had a a more drastic step y dissolving Parliament therey effectively sacking the UNP government. These actions y President

httpwww.peaceinsrilanka.lknegotiationsceasefireagreement umaratunga had a specific political context too. The fact that the httpswww.aftenposten.nonorgeirATigersannounce President and the Prime Minister, representing Sri Lanka’s two theyaresuspendingpeacetalks Balasingham (2006) provides a comprehensive account, from the LTTE’s point of view, of these developments. there are separate states, not ust one state. A federation, in contrast, is a union A union of states in which each member state retains some independent of states in which external affairs are controlled y a unified, central control over internal and external affairs. Thus, for international purposes, government.

82 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 earlier position of hard bargaining at the negotiation table. At the few months earlier taken a ‘minimalist’ position on the extent of very first round of peace talks held in angkok, the LTTE power of the interim government, could not offer a constructive gave the impression that a negotiated political settlement was political response to the LTTE’s ‘maximalist’ agenda. Prospects for actually on its agenda, although the skeptics immediately expressed the resumption of talks ecame diminished, as the gulf etween doubts about it. owever, the peace process took an unexpected the positions of the government and the LTTE on an interim and sudden turn in April when the LTTE refused to take part solution progressively widened. The LTTE’s ISGA proposals also in further talks, making the allegation that the government was strengthened the Sinhala nationalist argument against any political slow in implementing the promises made at the talks. esponding understanding with the LTTE. Many saw the proposals confirming to international pressure to return to the talks, the LTTE stated in their elief that the LTTE, despite its occasional peace overtures, ay that it would reconsider the boycott only if the had in fact een working to achieve its ultimate oective of government was ready to discuss proposals for in interim solution realiing a separate state through secession. or skeptics, the ISGA in the form of an interim selfgoverning authority for the Northern proposals were a mere pretext employed y the LTTE to ring the and Eastern provinces. negotiations to a stage of terminal crisis and then ustify a new military offensive. A new debate on an interim selfgoverning authority thus erupted while the ceasefire agreement was coming under severe stress. n The crisis of the Norwegianled peace initiative had its political ay and une , the UNP government submitted to the LTTE repercussions at the level of the government as well. Within days two proposals for an interim government in the North and East, of the ISGA proposals eing made pulic, President handrika but the LTTE reected them as inadeuate to form the basis for umaratunga dismissed the UNP government’s defence, foreign, the resumption of negotiations. n ctober , the LTTE and media ministers and appointed memers of her Sri Lanka presented to the government, through the Norwegian Ambassador reedom Party SLP as new ministers, ustifying the move on the in olombo, its own proposals for an nterim Selfoverning argument that national security and sovereignty were facing an Authority SA. These proposals appeared to have been based imminent threat y the Wikremasinghe government’s inept on a new principle of extensive regional autonomy akin to handling of the new crisis. Within two months, the President took confederalism. t became clear that the government, which had a a more drastic step y dissolving Parliament therey effectively sacking the UNP government. These actions y President

83 Sri Lanka: State of Human Rights: 2018

main opposing political parties – the SLP and the UNP deep sense of disappointment caused by the government’s respectively – could not work in a framework of accommodation, reluctance to initiate a robust programme of normaliation in the or cohaitation, had led to a phase of hostility and confrontation wartorn areas. Political inertia on the part of the government and etween the two centres of power. This crisis of cohaitation the bureaucratic hindrances to taking bold initiatives for oviously provided the political context as well ustification for the normaliation particularly contributed to this growing sense dismissal of the UNP government. disenchantment within the Tamil society. The crisis of the peace process had also revived, with public support and legitimacy, the At the parliamentary elections held in April , a new coalition argument for restoring the state’s military strength visavis the led by President Kumaratunga’s Sri Lanka Freedom Party emerged LTTE and redesigning the peace initiative without international victorious. The core of the deate during the election campaign participation. In other words, the collapse of the peace process of was aout war and peace with the LTTE. The SLPled coalition’s created conditions for greater acceptance of the military campaign centered on an argument for a new hardline approach to option by both the government and the LTTE. the LTTE with the oective of restoring military alance in favour

of the state so that the new government could relaunch the peace Thus, the aftermath of the collapse of the UNP government’s initiative without international participation and from a position of peace initiative of marked the beginning of a new phase of military strength. The SLPled coalition also conducted its Sri Lanka’s civil war. The key feature of the new phase was the election campaign in a manner that turned the parliamentary growing belief among powerful forces in the Sri Lankan state and election into a ‘public referendum’ on the Norwegian facilitated the military, and the LTTE that a return to fullscale war would be peace initiative of the UNP government. The election outcome, the best way to achieve their individual strategic obectives. rom which saw the UNP’s defeat, demonstrated that in Sri Lanka’s the perspective of those forces within the government that pressed Sinhalese society, the idea of peace through negotiation and

political accommodation with the LTTE had een discredited to a ne of the key topics of debate among policy makers in Sri Lanka during this considerale degree. While the pulic confidence of the process period concerning political engagement for peace with the LTTE was about the had diminished considerably, the LTTE’s continuous violation of approach to peace. This debate on approach centered on two perspectives. The first, advanced by the UNP, held the view that negotiations with the LTTE the ceasefire agreement and the recruitment of children to its should be assisted and facilitated by the international community, with two fighting ranks had created a great deal of pulic skepticism aout parallel tracks of state reform for enhanced devolution and rapid economic development through the active participation of global capital. It viewed the LTTE’s ona ids Among the Tamil citiens too, there was a international participation as a ‘safety net’ for the government. It also promoted the LTTE’s exposure to the international environment. The second approach, The account which Austin ernando provides Austin ernando, y lly is shared by the SLP and its Sinhalese nationalist partners, wanted to de Wi olomo iitha apa ooks, on the impact of the conflict internationalie the engagement with the LTTE as well as the peace process, etween the President and the Prime Minister on the peace process negotiate with the LTTE from a position of military strength, do away with is full of insider’s insights. Fernando was the Secretary to the Ministry of ceasefire as a precondition, and regain the military capacity of the government efence during this crucial period. to define the terms of engagement as well as a possible settlement agreement.

84 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 main opposing political parties – the SLP and the UNP deep sense of disappointment caused by the government’s respectively – could not work in a framework of accommodation, reluctance to initiate a robust programme of normaliation in the or cohaitation, had led to a phase of hostility and confrontation wartorn areas. Political inertia on the part of the government and etween the two centres of power. This crisis of cohaitation the bureaucratic hindrances to taking bold initiatives for oviously provided the political context as well ustification for the normaliation particularly contributed to this growing sense dismissal of the UNP government. disenchantment within the Tamil society. The crisis of the peace process had also revived, with public support and legitimacy, the At the parliamentary elections held in April , a new coalition argument for restoring the state’s military strength visavis the led by President Kumaratunga’s Sri Lanka Freedom Party emerged LTTE and redesigning the peace initiative without international victorious. The core of the deate during the election campaign participation. In other words, the collapse of the peace process of was aout war and peace with the LTTE. The SLPled coalition’s created conditions for greater acceptance of the military campaign centered on an argument for a new hardline approach to option by both the government and the LTTE. the LTTE with the oective of restoring military alance in favour of the state so that the new government could relaunch the peace Thus, the aftermath of the collapse of the UNP government’s initiative without international participation and from a position of peace initiative of marked the beginning of a new phase of military strength. The SLPled coalition also conducted its Sri Lanka’s civil war. The key feature of the new phase was the election campaign in a manner that turned the parliamentary growing belief among powerful forces in the Sri Lankan state and election into a ‘public referendum’ on the Norwegian facilitated the military, and the LTTE that a return to fullscale war would be peace initiative of the UNP government. The election outcome, the best way to achieve their individual strategic obectives. rom which saw the UNP’s defeat, demonstrated that in Sri Lanka’s the perspective of those forces within the government that pressed Sinhalese society, the idea of peace through negotiation and political accommodation with the LTTE had een discredited to a ne of the key topics of debate among policy makers in Sri Lanka during this considerale degree. While the pulic confidence of the process period concerning political engagement for peace with the LTTE was about the had diminished considerably, the LTTE’s continuous violation of approach to peace. This debate on approach centered on two perspectives. The first, advanced by the UNP, held the view that negotiations with the LTTE the ceasefire agreement and the recruitment of children to its should be assisted and facilitated by the international community, with two fighting ranks had created a great deal of pulic skepticism aout parallel tracks of state reform for enhanced devolution and rapid economic development through the active participation of global capital. It viewed the LTTE’s ona ids Among the Tamil citiens too, there was a international participation as a ‘safety net’ for the government. It also promoted the LTTE’s exposure to the international environment. The second approach, The account which Austin ernando provides Austin ernando, y lly is shared by the SLP and its Sinhalese nationalist partners, wanted to de Wi olomo iitha apa ooks, on the impact of the conflict internationalie the engagement with the LTTE as well as the peace process, etween the President and the Prime Minister on the peace process negotiate with the LTTE from a position of military strength, do away with is full of insider’s insights. Fernando was the Secretary to the Ministry of ceasefire as a precondition, and regain the military capacity of the government efence during this crucial period. to define the terms of engagement as well as a possible settlement agreement.

85 Sri Lanka: State of Human Rights: 2018

for a military option, resuming the war was necessary to regain the si years, the Sri Lankan state could reestalish its authority over state’s military and political advantage over the LTTE. The new the entire Northern and Eastern provinces, with no single Tamil government’s analysis of the Norwayfacilitated peace process reel group challenging the writ of the state. Thus, after a series of under the UNP government was that the ceasefire had damaged failed attempts at a negotiated end to it y political means, Sri the existing military balance of power to the advantage of the Lanka’s civil war came to an end by military means. LTTE. or the LTTE, returning to fullscale war was necessary to s warending an adeuate condition to guarantee an end to the demonstrate its military invincibility and, in turn, strengthen its ethnic conflict as well and in turn for the estalishment of lasting bargaining capacity with both the Sri Lankan government and the peace in Sri Lanka? A large share of Sri Lanka’s politics since May international actors. Thus, by the end of , Sri Lanka appeared has een revolving around this uestion. efore we turn to a to be ready for another phase of war reescalation. owever, the discussion of this theme, let us focus our attention on identifying Indian cean Tsunami of ecember, tentatively some key dynamics that emerged through the war process. prevented Sri Lanka’s relapse to war. The first steps towards a return to war began in late after the Presidential election was held on November, . ahinda In the evolution of politics Sri Lanka’s ethnic war and peace, there aapaksa, Prime inister of Kumaratunga’s United People’s have een several recurrent patterns. ne is whenever a peace reedom lliance UP coalition government, won the election. initiative faced a crisis, the argument for a military solution to the e began his tenure as president by resuming the ceasefire and conflict reemerged with renewed vigour. n such circumstances, talks with the LTTE in early . owever, neither side appeared the LTTE in the Tamil society and the hardline nationalist forces to be committed to any positive outcome from the talks. midst in the Sinhalese society have een pushing for a unilateral military continuing ceasefire violations, failure of international actors to solution as a more effective alternative to political engagement. At save the ceasefire, and increasing tension in governmentLTTE the same time, periodic resumption of talks had also kept the relations, relapsing to total war seemed inevitable. Eventually, the discourse of peace uilding alive, despite the freuent setacks it three year period from to marked the final phase of Sri suffered due to the regular pattern of relapsing to war. Lana’s civil war. The last phase of the war, spanning over a period In this trajectory of Sri Lanka’s conflict in which persistent war and about nine months, had been particularly intense, brutal and occasional peace had constituted its two complementary sides, horrendously destructive. oth sides demonstrated their priority of there has also een a process of internationaliation. Eternal military goals over the safety and security of the civilians trapped actors, oth state and nonstate, were involved in the supply of in the conflict. Although the government “won” the war, it was a arms, provision of military training and intelligence as well as pyrrhic victory in a humanitarian sense. The war ended in ay with the outright military defeat of the LTTE. fter twenty

86 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 for a military option, resuming the war was necessary to regain the si years, the Sri Lankan state could reestalish its authority over state’s military and political advantage over the LTTE. The new the entire Northern and Eastern provinces, with no single Tamil government’s analysis of the Norwayfacilitated peace process reel group challenging the writ of the state. Thus, after a series of under the UNP government was that the ceasefire had damaged failed attempts at a negotiated end to it y political means, Sri the existing military balance of power to the advantage of the Lanka’s civil war came to an end by military means. LTTE. or the LTTE, returning to fullscale war was necessary to s warending an adeuate condition to guarantee an end to the demonstrate its military invincibility and, in turn, strengthen its ethnic conflict as well and in turn for the estalishment of lasting bargaining capacity with both the Sri Lankan government and the peace in Sri Lanka? A large share of Sri Lanka’s politics since May international actors. Thus, by the end of , Sri Lanka appeared has een revolving around this uestion. efore we turn to a to be ready for another phase of war reescalation. owever, the discussion of this theme, let us focus our attention on identifying Indian cean Tsunami of ecember, tentatively some key dynamics that emerged through the war process. prevented Sri Lanka’s relapse to war. The first steps towards a return to war began in late after the Presidential election was held on November, . ahinda In the evolution of politics Sri Lanka’s ethnic war and peace, there aapaksa, Prime inister of Kumaratunga’s United People’s have een several recurrent patterns. ne is whenever a peace reedom lliance UP coalition government, won the election. initiative faced a crisis, the argument for a military solution to the e began his tenure as president by resuming the ceasefire and conflict reemerged with renewed vigour. n such circumstances, talks with the LTTE in early . owever, neither side appeared the LTTE in the Tamil society and the hardline nationalist forces to be committed to any positive outcome from the talks. midst in the Sinhalese society have een pushing for a unilateral military continuing ceasefire violations, failure of international actors to solution as a more effective alternative to political engagement. At save the ceasefire, and increasing tension in governmentLTTE the same time, periodic resumption of talks had also kept the relations, relapsing to total war seemed inevitable. Eventually, the discourse of peace uilding alive, despite the freuent setacks it three year period from to marked the final phase of Sri suffered due to the regular pattern of relapsing to war. Lana’s civil war. The last phase of the war, spanning over a period In this trajectory of Sri Lanka’s conflict in which persistent war and about nine months, had been particularly intense, brutal and occasional peace had constituted its two complementary sides, horrendously destructive. oth sides demonstrated their priority of there has also een a process of internationaliation. Eternal military goals over the safety and security of the civilians trapped actors, oth state and nonstate, were involved in the supply of in the conflict. Although the government “won” the war, it was a arms, provision of military training and intelligence as well as pyrrhic victory in a humanitarian sense. The war ended in ay with the outright military defeat of the LTTE. fter twenty

87 Sri Lanka: State of Human Rights: 2018

humanitarian assistance. Some attempted to broker a negotiated b international monitoring of negotiations ceasefire and post peace. Sri Lanka’s conflict thus became enmeshed in global settlement process of implementation and peace building c politics. In the early phase of the war, India was directly involved international political and diplomatic assistance to the government in both war and peace efforts in Sri Lanka. Indian political elites in the form of an international safet net d rapid economic seem to have believed that it was India’s exclusive prerogative to development facilitated b enhanced market liberaliation and shape the political future of conflicttorn Sri Lanka. owever, after through the participation of private foreign capital to guarantee the withdrawal of the I in and the assassination of economic dividend of peace and e democratiation including former rime Minister ajiv andhi by the L in May , improvement of human rights and minorit rights. econciliation India’s role in Sri Lanka’s conflict became discreet. hat opened and transitional ustice were included in the agenda much later up the space for etraregional actors, primarily the and the after . estern states, to eperiment with their own peace agendas in Sri Lanka. Some estern countries the S, the and State reform has been a maor component of the peace proect as countries – had provided the Sri Lankan government both military defined b the Sri Lankan governments until . Its recent th and humanitarian assistance, thereby becoming parties to both the origins go back to the establishment of devolution through the conflict and war. It was against this backdrop that mendment to the onstitution in . he IndoLanka ccord internationaliation of efforts also took place. he orwegianled of had established the point in Sri Lanka’s political discourse peace facilitation that began in marked the beginning of this that a political response to the ami insurgenc was necessar and new trend of linking Sri Lanka’s conflict with the Westled global possible and that such a response should aim at offering a liberal peace project. framework of regional autonom to the amil minorit. the earl s Sri Lanka’s leading political elites had reached a cross he liberal peace programme, as conceptualied by the as well part consensus on this issue with minor differences in the extent as the estern powers, linked peace with security and and unit of devolution. While the amil political leadership insisted development. ith regard to Sri Lanka, it had proposed a policy on the permanent merger of the orthern and astern provinces th package that included a internationally mediated negotiations and more devolution beond the mendment Sinhalese and a peace agreement between the government and the L, leaders expressed the willingness to negotiate these two demands. uslim political leaders also oined the fra b demanding a separate uslim unit of devolution in the astern province. his httpsjournals.openedition.orgpoldev elite consensus broke down after the civil war ended. or an elaboration of this argument, see ristan Stokke and ayadeva yangoda eds., iral a in sion: oliis o a and ar or in ri ana London Anthem ress and Sunil astian, oliis o orin id in ri ana: rooin ars and orin a olombo International entre for thnic Studies, .

88 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 humanitarian assistance. Some attempted to broker a negotiated b international monitoring of negotiations ceasefire and post peace. Sri Lanka’s conflict thus became enmeshed in global settlement process of implementation and peace building c politics. In the early phase of the war, India was directly involved international political and diplomatic assistance to the government in both war and peace efforts in Sri Lanka. Indian political elites in the form of an international safet net d rapid economic seem to have believed that it was India’s exclusive prerogative to development facilitated b enhanced market liberaliation and shape the political future of conflicttorn Sri Lanka. owever, after through the participation of private foreign capital to guarantee the withdrawal of the I in and the assassination of economic dividend of peace and e democratiation including former rime Minister ajiv andhi by the L in May , improvement of human rights and minorit rights. econciliation India’s role in Sri Lanka’s conflict became discreet. hat opened and transitional ustice were included in the agenda much later up the space for etraregional actors, primarily the and the after . estern states, to eperiment with their own peace agendas in Sri Lanka. Some estern countries the S, the and State reform has been a maor component of the peace proect as countries – had provided the Sri Lankan government both military defined b the Sri Lankan governments until . Its recent th and humanitarian assistance, thereby becoming parties to both the origins go back to the establishment of devolution through the conflict and war. It was against this backdrop that mendment to the onstitution in . he IndoLanka ccord internationaliation of efforts also took place. he orwegianled of had established the point in Sri Lanka’s political discourse peace facilitation that began in marked the beginning of this that a political response to the ami insurgenc was necessar and new trend of linking Sri Lanka’s conflict with the Westled global possible and that such a response should aim at offering a liberal peace project. framework of regional autonom to the amil minorit. the earl s Sri Lanka’s leading political elites had reached a cross he liberal peace programme, as conceptualied by the as well part consensus on this issue with minor differences in the extent as the estern powers, linked peace with security and and unit of devolution. While the amil political leadership insisted development. ith regard to Sri Lanka, it had proposed a policy on the permanent merger of the orthern and astern provinces th package that included a internationally mediated negotiations and more devolution beond the mendment Sinhalese and a peace agreement between the government and the L, leaders expressed the willingness to negotiate these two demands. uslim political leaders also oined the fra b demanding a separate uslim unit of devolution in the astern province. his httpsjournals.openedition.orgpoldev elite consensus broke down after the civil war ended. or an elaboration of this argument, see ristan Stokke and ayadeva yangoda eds., iral a in sion: oliis o a and ar or in ri ana London Anthem ress and Sunil astian, oliis o orin id in ri ana: rooin ars and orin a olombo International entre for thnic Studies, .

89 Sri Lanka: State of Human Rights: 2018

The main components of the government’s ‘homegrown’ peace he end o the ciil ar in a sa the redirection o Sri building agenda were as follows a priority accorded to Lanka’s peacebuilding agenda along a path in hich securit and resettlement of internally displaced people in the orth and East, deelopent ere gien priac oer huan rights ethic and rapid economic and infrastructure development in the region, reconciliation and political reors he goernent o resident b enhancement of security and military capacities of the state in ahinda aapaksa appeared to hae signiicantl deiated ro order to flush out any remaining LTTE militants and prevent any the liberal peacebuilding proect hich deined the eorts o the future recurrence of the Tamil insurgency, c deemphasis of the preious goernent Soon ater the ar ended the need for a political solution through enhanced devolution, and d Secretar eneral isited Sri Lanka to reie the liberal peace postponement of addressing human rights issues arising from the building agenda in Sri Lanka resident aapaksa initiall indicated war the illingness to ollo the lead in postar peace building n a oint stateent issued on a the resident reiterated These components of President Rajapaksa’s postwar agenda in a his government’s “strongest coitent to the prootion and way reflected Sri Lanka’s political realities altered by the ending of protection o huan rights in keeping ith international huan the war, the total military defeat of the LTTE, the absence of the rights standards and Sri Lanka’s international obligations” while Tamil secessionist insurgency, and even moderate resistance t the Secretar General “underlined the importance of an also reflected the new constellation of ideology and policy evolved accountabilit process or addressing iolations o international during the last phase of the war under a new civilmilitary coalition humanitarian and human rights law.” resident aapaksa agreed that was set up to prosecute the war under President ahinda to take easures to address those grieances oeer there Rajapaksa and his younger brother, efence Secretary otabaya appeared to be a resh thinking ithin the goernent on the Rajapaksa The new policy seems to have been built on an apparent agenda as ell as priorities o postar peace building leading to analysis of the postwar political conditions in Sri Lanka, which the articulation o a ne approach hich undaentall diered gave rise to a set of assumptions including a the military defeat ro the agenda presented though the uan ights of the LTTE and the absence of the Tamil insurgency radically ouncil he core eleent o this ne thinking as to design a altered the political balance of power in favour of the state and its ‘home grown’ peace building programme, so that the government’s armed forces b ending the war made devolution and the postar strateg ould be neither inluenced b nor accountable argument for a political solution to the ethnic conflict redundant to eternal actors particularl the and irrelevant, because the policy option for devolution had emerged in the context of the LTTE’s military pressure, which had ceased with their elimination c postwar nationbuilding and national integration should be guided by the goal of economic oint Stateent by United Nation’s Secretary General, Government of Sri integration of the wartorn areas with the rest of the country d Lanka a httpsunorgpressensgdocht

90 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017

91 Sri Lanka: State of Human Rights: 2018

the role for Western countries in Sri Lanka’s postwar reuilding question is partly ideological and partly contextual. The regime’s should e minimied and confined to economic and humanitarian ideological position was that Sri Lankan amils never had genuine assistance without political conditions and e postwar Sri Lanka political grievances that warranted regional autonomy. he needed a peace uilding agenda defined solely y the government regime’s ideology viewed the Tamil ethnic insurgency essentially as and its defence estalishment, not an eternally imposed one. a ‘terrorist problem’ which required a military solution. owever, as asserted in this ideological eplanation, amils had legitimate his policy has its politics too. t reflected the ideology of hardline economic grievances arising from two sources a regional uneven Sinhalese nationalism which the Rajapaksa administration had development since independence, and socioeconomic emraced during war against the LE. t also appealed to the consequences of war. he contetual eplanation was linked to the majority of the Sinhalese electorate as ecame evident at the way in which the war ended, with a unilateral military victory to the presidential election held on anuary, . resident Rajapaksa state. victorious military and its defence estalishment had thus sought reelection, shortening even the duration of his office, emerged as the most powerful institution of Sri Lanka’s postwar primarily on the record of the war victory claiming personal credit state. s it ecame evident soon after the ending of the war, the for it. e won majorities in all the Sinhalamajority electoral military approach to postwar peace uilding ecluded political and divisions. Equally significant was that Rajapaksa’s opponent, humanitarian approaches. t also fostered majoritarian and former army commander eneral Sarath onseka, who had led the hardline Sinhala nationalism which soon saw uslims as the new military campaign against the LE, won the majority of votes in threat to Sinhalese uddhist interests. mong the political all amil and uslim majority electoral divisions in the orthern consequences of this approach to postwar reconstruction was the and Eastern provinces. he postwar policy as well as the electoral continuing alienation of the amil and uslim minorities from the strategy of resident Rajapaksa had also divided Sri Lankan voters government. clearly on ethnic lines. Still more significantly, the Rajapaksa administration lost the susequent provincial council and local his alienation of the minorities could have een minimied, if not government elections in the orth to the amil ational lliance, prevented, if the Rajapaksa administration implemented the indicating that the amil citiens remained acutely skeptical aout recommendations of the Lessons Learned and Reconciliation the government’s policy of giving primacy to development over ommission LLR which was appointed y resident ahinda their political and human rights demands. Rajapaksa on Septemer, , primarily to counteract growing international pressure to investigation alleged war crimes. mong Why did the Rajapaksa administration opt for a postwar policy of the ommission’s mandated tasks was the responsibility of finding reconstruction which emphasied economic and infrastructure out the reasons for the war and measures to e taken to prevent development in the orthern and Eastern provinces at the recurrence of war and violence as well as to “promote further epense of a political and humanitarian agenda he answer to this

92 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 the role for Western countries in Sri Lanka’s postwar reuilding question is partly ideological and partly contextual. The regime’s should e minimied and confined to economic and humanitarian ideological position was that Sri Lankan amils never had genuine assistance without political conditions and e postwar Sri Lanka political grievances that warranted regional autonomy. he needed a peace uilding agenda defined solely y the government regime’s ideology viewed the Tamil ethnic insurgency essentially as and its defence estalishment, not an eternally imposed one. a ‘terrorist problem’ which required a military solution. owever, as asserted in this ideological eplanation, amils had legitimate his policy has its politics too. t reflected the ideology of hardline economic grievances arising from two sources a regional uneven Sinhalese nationalism which the Rajapaksa administration had development since independence, and socioeconomic emraced during war against the LE. t also appealed to the consequences of war. he contetual eplanation was linked to the majority of the Sinhalese electorate as ecame evident at the way in which the war ended, with a unilateral military victory to the presidential election held on anuary, . resident Rajapaksa state. victorious military and its defence estalishment had thus sought reelection, shortening even the duration of his office, emerged as the most powerful institution of Sri Lanka’s postwar primarily on the record of the war victory claiming personal credit state. s it ecame evident soon after the ending of the war, the for it. e won majorities in all the Sinhalamajority electoral military approach to postwar peace uilding ecluded political and divisions. Equally significant was that Rajapaksa’s opponent, humanitarian approaches. t also fostered majoritarian and former army commander eneral Sarath onseka, who had led the hardline Sinhala nationalism which soon saw uslims as the new military campaign against the LE, won the majority of votes in threat to Sinhalese uddhist interests. mong the political all amil and uslim majority electoral divisions in the orthern consequences of this approach to postwar reconstruction was the and Eastern provinces. he postwar policy as well as the electoral continuing alienation of the amil and uslim minorities from the strategy of resident Rajapaksa had also divided Sri Lankan voters government. clearly on ethnic lines. Still more significantly, the Rajapaksa administration lost the susequent provincial council and local his alienation of the minorities could have een minimied, if not government elections in the orth to the amil ational lliance, prevented, if the Rajapaksa administration implemented the indicating that the amil citiens remained acutely skeptical aout recommendations of the Lessons Learned and Reconciliation the government’s policy of giving primacy to development over ommission LLR which was appointed y resident ahinda their political and human rights demands. Rajapaksa on Septemer, , primarily to counteract growing international pressure to investigation alleged war crimes. mong Why did the Rajapaksa administration opt for a postwar policy of the ommission’s mandated tasks was the responsibility of finding reconstruction which emphasied economic and infrastructure out the reasons for the war and measures to e taken to prevent development in the orthern and Eastern provinces at the recurrence of war and violence as well as to “promote further epense of a political and humanitarian agenda he answer to this

93 Sri Lanka: State of Human Rights: 2018

national unity and reconciliation among all communities.”2 The a powerful guide to policy for postwar peace uilding, Commission had pulic sittings for aout a year, and listened to accompanied y an equally strong moral and normatie ictims, suriors and witnesses in the war affected areas, and imagination as well.0 The ision of reconciliation it adanced was produced an interim report and later a final report.29 The a comprehensie one, encompassing reuilding the relations Commission’s analysis of Sri Lanka’s war, the human and etween the Tamil community and the Sri Lankan state, addressing humanitarian crises it had caused, and the recommendations were the prolem of deep alienation etween Tamil citiens and the far reaching in terms of their potential in promoting sustainale state, and restoration of human rights in a comprehensie manner peace in postwar Sri Lanka. This is despite the fact that the Report while addressing most of the concerns of the ictims of war. Two eonerated the armed forces from allegations of serious human of the noteworthy recommendations that illustrated this potential rights iolations during the last few months of the war. of the Report were

The Commission’s recommendations aimed at interethnic (a Full acknowledgement of “the tragedy of the conflict and reconciliation eemplify the potential of the Report to e used as undertaking a collectie act of contrition y the political leaders and ciil society, of oth Sinhala and Tamil

2 resident Rajapaksa’s official letter appointing the commission did not communities.” Making this recommendation, the directly refer either to the ethnic conflict, the ciil war, or iolence. n a strange Commission also observed: “Seeds of reconciliation can take sort of formulation, the letter directed the commissioners to “inquire into and root. Leaders on all sides should reach out to each other in report on … the facts and circumstances which led to the failure of the ceasefire agreement operationalied on 2st eruary 2002 and the sequence of humility and make a joint declaration, etending an apology to eents that followed thereafter up to the 9th of May 2009.” (LLRC Report, innocent citiens who fell ictims to this conflict, as a result 20 iii. 29httpslemassyusa.orgdownloadsLLRCRRT.pdf . The LLRCs of the collectie failure of the political leadership on all sides eight memers were C. R. e Sila, C (chair , ttorney eneral (200–09, to preent such a conflict from emerging. Religious leaders Solicitor eneral (999–200, eputy Solicitor eneral (992–9 Rohan and ciil society should work towards it and emphasie the erera, C, former legal adisor to the Ministry of oreign ffairs and current healing impact it would hae on the entire process of memer of the nternational Law Commission arunaratne angawatte, reconciliation” (LLRC, 2011: 323). rofessor of Criminal ustice at the epartment of Criminal ustice, niersity of eada, Las egas and former consultant to the nited ations ( mong the recommendations to deal with the allegations of Chandirapal Chanmugam, Secretary to the Treasury (9– . M. . S. serious human rights violations, the Commission proposed “a alihakkara former Secretary, Ministry of oreign ffairs and former comprehensie approach to address the issue of missing ermanent Representatie to the nited ations Manohari Ramanathan, persons … as a matter of urgency” (p. 339). While making this former eputy Legal raftsman and former memer of the Monetary oard recommendation, the Commission emphasized that “the of Sri Lanka Mawell arakrama aranagamam, former igh Court udge M. T. M. afiq, Senior ttorney at law and memer of the uman Rights Commission of Sri Lanka 0httpslemassyusa.orgdownloadsLLRCRRT.pdf.

94 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 national unity and reconciliation among all communities.”2 The a powerful guide to policy for postwar peace uilding, Commission had pulic sittings for aout a year, and listened to accompanied y an equally strong moral and normatie ictims, suriors and witnesses in the war affected areas, and imagination as well.0 The ision of reconciliation it adanced was produced an interim report and later a final report.29 The a comprehensie one, encompassing reuilding the relations Commission’s analysis of Sri Lanka’s war, the human and etween the Tamil community and the Sri Lankan state, addressing humanitarian crises it had caused, and the recommendations were the prolem of deep alienation etween Tamil citiens and the far reaching in terms of their potential in promoting sustainale state, and restoration of human rights in a comprehensie manner peace in postwar Sri Lanka. This is despite the fact that the Report while addressing most of the concerns of the ictims of war. Two eonerated the armed forces from allegations of serious human of the noteworthy recommendations that illustrated this potential rights iolations during the last few months of the war. of the Report were

95 Sri Lanka: State of Human Rights: 2018

relatives of missing persons shall have the right to know the his was an unusual coalition between the and a breakaway whereabouts of their loved ones. hey also have the right to group of the SL led by Maithripala Sirisena, party Secretary at know the truth about what happened to such persons, and to the time. Sirisena successfully contested the presidential election, bring the matter to closure” (p. 339). Acknowledging “the held on anuary 201 as the common opposition candidate. he complexity and magnitude of the problem” of disappearances, new coalition went on to secure a parliamentary maority at “and considering the number of persons alleged to have elections held on 1 August 201. ishing to repair its disappeared, and the time consuming nature of the international reputation – particularly with estern governments investigations involved,” the Commission recommended the and at the uman Rights Council – the leadership of the new appointment of a Special Commissioner to investigate alleged government, immediately after coming into power, revived the disappearances and provide material to the ttorney eneral sponsored peace building programme which had earlier been to initiate criminal proceedings as appropriate” (LLRC, 2011: kept in abeyance by resident Raapaksa and his government. he 339). new government went to the extent of cosponsoring along with

the S, the , apan and several other countries a new RC owever, the LLRC Report did not generate an enthusiastic resolution on Sri Lanka. It marked a bold commitment “to response from the Raapaksa administration. t ignored the Report undertake a comprehensive approach to dealing with the past, and allowed it to be erased from the administration’s postwar incorporating the full range of udicial and nonjudicial measures” policy agenda as well as from its political memory. ery clearly, the aimed at delivering “truth, justice, reparation and guarantees of LLRC recommendations went against the grain of Raapaksa nonrecurrence.”31 Amnesty International described it a “historic administration’s triumphalist ethnic ideology as well as the ‘victor’s commitment.”32 he new peace plan included the following peace’ approach to postwar politics and policy. t the same time, components: establishment of an ffice of Reparations however, the commission, and the government’s promises to establishment of a Commission for truth, ustice, reconciliation, implement its recommendations, provided a number of years of and nonrecurrence setting up offices of missing persons, and for respite from international pressure at the uman Rights reparations and ensuring accountability by establishing a udicial Council. mechanism to investigate violations and abuses of human rights 33 and international humanitarian law.

Meanwhile, an unexpected turn of events occurred in Sri Lanka’s 31 romoting reconciliation, accountability and human rights in Sri Lanka, postwar political traectory in anuary 201, bringing liberal peace ARCRS301, 1 ctober 201, paragraph . 32 building back to the political agenda. t was the replacement of the https:www.amnesty.orgdownloadocumentsASA339201L S.pdf. Mahinda Raapaksa administration by a new coalition led by the 33RC Resolution 301, on romoting Reconciliation, Accountability and nited ational arty that had remained out of power since 200. uman Rights in Sri Lanka, ctober 1, 201.

96 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 relatives of missing persons shall have the right to know the his was an unusual coalition between the and a breakaway whereabouts of their loved ones. hey also have the right to group of the SL led by Maithripala Sirisena, party Secretary at know the truth about what happened to such persons, and to the time. Sirisena successfully contested the presidential election, bring the matter to closure” (p. 339). Acknowledging “the held on anuary 201 as the common opposition candidate. he complexity and magnitude of the problem” of disappearances, new coalition went on to secure a parliamentary maority at “and considering the number of persons alleged to have elections held on 1 August 201. ishing to repair its disappeared, and the time consuming nature of the international reputation – particularly with estern governments investigations involved,” the Commission recommended the and at the uman Rights Council – the leadership of the new appointment of a Special Commissioner to investigate alleged government, immediately after coming into power, revived the disappearances and provide material to the ttorney eneral sponsored peace building programme which had earlier been to initiate criminal proceedings as appropriate” (LLRC, 2011: kept in abeyance by resident Raapaksa and his government. he 339). new government went to the extent of cosponsoring along with

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he ne peace plan also relected the general political trend that rogt directl nder reident iriena. e governent invited had marked the circumstances o regime change that occurred in andria aratnga te forer reident to ead te nel anuary . he ne coalition had incorporated in its agenda a etalied a orce – later ade an ffice – for ational nit number o themes that had been key topics in the oppositional and econciliation. o flfill it roie of olitical refor and political campaign during the ajapaksa administration. he range olitical rigt of te inoritie te governent alo initiated a o oppositional topics included democracy, peace, human rights, rograe of action for contittional refor nder te rie interethnic reconciliation, minority rights, corruptionree initer. t deigned a novel roce in ic arliaent cold governance, democratic openness, and importantly, accountability fnction a a contittional ael o tat all artie in or alleged ar crimes and other serious rights violations during arliaent old e articiant and taeolder in drafting and the ar. hese ere also major elements o the political agenda o adoting a ne contittion. amil and uslim parties. hese minority parties and civil society groups that had been advocating or those themes ere also eite it initial entiatic roie te governent ee to components o the broad coalition hich came to call itsel a ave fond it difficlt to ileent te eedil. oreign ‘coalition for good governance.’ Minister Mangala Samaraweera’s statement to the UNHRC in eneva ade on ne indicated tat te governent ad he ne government launched its reorm agenda ith a great sense een lo and catio in ileenting e coonent of it o optimism. Although peace building as a tall agenda in the reconciliation and tranitional tice roie. initer comple political contet o ri anka at the time, the government Samaraweera elaborated the government’s new approach of promised the orld community and ri ankan citiens that caution by quoting from President Sirisena’s ndeendence a achieving peace, democracy, and reconciliation ere its top most eage to te nation on erar . ile reiterating i policy priority. he government alloed the police to pursue commitment “to fulfill the provisions of the resolution 30/1 in inuiries into crimes and serious human rights violations during working out the contours of a new Sri Lanka,” President Sirisena the previous regime that had not been properly investigated. It also ad alo tated tat governent old ileent te rooal set up a ne institutional mechanism to investigate allegations o with “patience, discipline, and restraint.” Suggesting possible corruption and abuse o poer during the previous regime. In sources of resistance to the government’s reconciliation and justice order to restore the independence o the judiciary, the government programme, President had qualified the nature of his government’s orced the ormer hie ustice to resign and appointed a successor commitments with the following words: “Sri Lanka is committed based on seniority, insisting that it as committed to to ileent te eoltion to rotect te dignit of or eole depoliticiation and independence o the judiciary. In order to bring vigour and credibility to its reconciliation programme, a ne eoltion on rooting econciliation ccontailit and an igt in ri ana tt.fa.gov.l inistry or reconciliation as set up and the ministry o as contentload.df

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99 Sri Lanka: State of Human Rights: 2018

our state, and our security forces.” Responding to concerns very clearly that the pace of implementation has been slow and the already been epressed in human rights and civil society circles of entire project had remained not only incomplete but also at a the delays in the justice front, Samaraweera had this to say: “Some preliminary stage. Items listed in the Minister’s progress report have started raising alarm bells that sequencing of transitional included the enactment of law for setting up the ffice of the justice mechanisms is a delay tactic or means to omit the Missing ersons approval by the Cabinet of Ministers of the component of justice. This is incorrect.” National olicy on urable Solutions for Conflictaffected Sri Lanka Foreign Minister’s statement before the UNHRC made isplacement amendment of the israion o as Torary in 2017 gives more clues to the stalemate to which the entire peace rovisions No o was amended by arliament, enabling building initiative had entered. The statement was like a report of the issuance of Certificates of bsence cabinet approval granted minimum progress achieved with ecuses for delays in, and the to the National Human Rights ction lan for the period 2017 lessthan satisfactory performance of, the peacebuilding 2021 handing over of 11,2 houses to the internally displaced programme. during 201 drafting of legislation on the TruthSeeking Commission and the conclusion of public consultations carried The Minister’s report of progress of two years of peacebuilding out by the Consultation Task Force on Reconciliation activities is replete with preparatory work undertaken, indicating Mechanisms. laced against the huge epectations that the victims of Sri Lanka’s war had placed on the government, and assessed in terms of the promises the government itself had made, this indeed http:www.president.gov.lkspeechdeliveredbypresidentmaithripala sirisenaatthethindependencedaycelebrationsonfebruary201 is a rather poor progress report. ll the quotations are from Foreign Minister Mangala Samaraweera’s statement available in https:www.media.gov.lknewsarchives7 The Minister also admitted in his statement that “the journey” statementbyforeignministermangalasamaraweeratothe2ndsessionof which the government had undertaken had been “challenging” and theunhumanrightscouncil. ccessed on anuary 12, 201. The following “strewn with both success as well as some setbacks” and paragraph from Samaraweera’s statement, looking at it retrospectively, was probably prophetic too: “Reconciliation does not happen at once, overnight. It “roadblocks and other obstacles in the day to day world of requires effort, hard work, commitment, and careful, continuous, concrete realpolitik” forcing the government to take “detours from time to action. It is not an end that can be reached where no further work is required. time.” However, Minister Samaraweera assured the world It is not a bo that can be ticked as achieved. It is a journey that requires community that “the destination and [the government’s] resolve to constant striving. commitment towards which our nation should be bound walk the distance will remain unchanged.” He was particularly keen across generations, and a central tenet of governance, because the price to pay if we falter, is not one our nation can endure once again after over thirty years to assure the success of the transitional justice programme: “[The of bloodshed that has spared no one.” By the end of 2017 it appears that the government’s resolve to see the transitional justice process government approach of caution has evolved into one of diminishing interest. through, has not diminished.”

100 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 our state, and our security forces.” Responding to concerns very clearly that the pace of implementation has been slow and the already been epressed in human rights and civil society circles of entire project had remained not only incomplete but also at a the delays in the justice front, Samaraweera had this to say: “Some preliminary stage. Items listed in the Minister’s progress report have started raising alarm bells that sequencing of transitional included the enactment of law for setting up the ffice of the justice mechanisms is a delay tactic or means to omit the Missing ersons approval by the Cabinet of Ministers of the component of justice. This is incorrect.” National olicy on urable Solutions for Conflictaffected Sri Lanka Foreign Minister’s statement before the UNHRC made isplacement amendment of the israion o as Torary in 2017 gives more clues to the stalemate to which the entire peace rovisions No o was amended by arliament, enabling building initiative had entered. The statement was like a report of the issuance of Certificates of bsence cabinet approval granted minimum progress achieved with ecuses for delays in, and the to the National Human Rights ction lan for the period 2017 lessthan satisfactory performance of, the peacebuilding 2021 handing over of 11,2 houses to the internally displaced programme. during 201 drafting of legislation on the TruthSeeking Commission and the conclusion of public consultations carried The Minister’s report of progress of two years of peacebuilding out by the Consultation Task Force on Reconciliation activities is replete with preparatory work undertaken, indicating Mechanisms. laced against the huge epectations that the victims of Sri Lanka’s war had placed on the government, and assessed in terms of the promises the government itself had made, this indeed http:www.president.gov.lkspeechdeliveredbypresidentmaithripala sirisenaatthethindependencedaycelebrationsonfebruary201 is a rather poor progress report. ll the quotations are from Foreign Minister Mangala Samaraweera’s statement available in https:www.media.gov.lknewsarchives7 The Minister also admitted in his statement that “the journey” statementbyforeignministermangalasamaraweeratothe2ndsessionof which the government had undertaken had been “challenging” and theunhumanrightscouncil. ccessed on anuary 12, 201. The following “strewn with both success as well as some setbacks” and paragraph from Samaraweera’s statement, looking at it retrospectively, was probably prophetic too: “Reconciliation does not happen at once, overnight. It “roadblocks and other obstacles in the day to day world of requires effort, hard work, commitment, and careful, continuous, concrete realpolitik” forcing the government to take “detours from time to action. It is not an end that can be reached where no further work is required. time.” However, Minister Samaraweera assured the world It is not a bo that can be ticked as achieved. It is a journey that requires community that “the destination and [the government’s] resolve to constant striving. commitment towards which our nation should be bound walk the distance will remain unchanged.” He was particularly keen across generations, and a central tenet of governance, because the price to pay if we falter, is not one our nation can endure once again after over thirty years to assure the success of the transitional justice programme: “[The of bloodshed that has spared no one.” By the end of 2017 it appears that the government’s resolve to see the transitional justice process government approach of caution has evolved into one of diminishing interest. through, has not diminished.”

101 Sri Lanka: State of Human Rights: 2018

uring the rest of the year , the challenges, setbacks, investigators.” ut there was no progress at all on this roadblocks and obstacles in the world of realpolitik that Minister commitment, and with the mounting criticism against the Samaraweera mentioned in his address to the H appeared participation of ‘foreign judges’ in ‘hybrid courts,’ the government to have led to the stalling of the peace building programme as a began to waver on the entire issue of transitional justice. The whole, sometimes with laws passed but not properly implemented, process of setting up the Office of the issing ersons suffered initiatives taken but the progress slowed down, and institutions and similar setbacs. fter much hesitation, the government passed the offices set up but with often overlapping mandates and without law in parliament, set up the office under the resident, with clearly designed work programmes. The transitional justice limited mandate and resources. This situation even prompted the programme and the constitutional reform process illustrate how by UN High Commissioner for Human Rights to urge the the end of 2017 the government’s commitments had become government that the Office should be “sufficiently resourced, uncertain and any further progress in peace building was unlikely promptly operationalied, and lined to other transitional justice to materialie. mechanisms.”

ndeed, the slow progress in the transitional justice front has not The transitional justice programme ran into crisis on two counts: escaped the UNHRC’s critical scrutiny. The Human Rights the government wavered on the international participation in the Council in it Resolution of had supported the proposed judicial mechanism and showed little commitment to commitment of the Government of ri ana to implement a ensure that investigations and court proceedings already being comprehensive transitional justice agenda that included the carried out reached conclusion. ccording to the H establishment of an accountability mechanism, truthseeing, esolution of of , the government had pledged to reparations programmes and institutional reforms. However, the UN High Commissioner for Human Rights in his report of “establish a judicial mechanism with a special counsel to investigate observed that only “a limited progress [had been] made with regard allegations of violations and abuses of human rights and violations of international humanitarian law, where applicable.” The government also affirmed through Resolution 30/1 “the importance of participation in a Sri Lankan judicial mechanism, UNHRC Resolution , paragraph , p. , httpwww.mfa.gov.limagesstoriespdfsdocsNpublished including the special counsel’s office, of Commonwealth and other thirtyslashone.pdf. foreign judges, defence lawyers and authoried prosecutors and Report of the Office of the UN High Commissioner for Human Rights, th ession of the UNHRC, th ebruary , paragraph , pp. .httpsreliefweb.intsitesreliefweb.intfilesresourcesHRC N.pdf, pp. . ccessed on anuary , . The resident appointed commissioners for the O in ebruary , just one month before the UNHRC’s meeting in Geneva.

102 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017

103 Sri Lanka: State of Human Rights: 2018

to transitional justice.” The High Commissioner’s report is government of and suffered a rief and temporary retreat replete ith oservations that highlighted the gap eteen the in anuary . government promises and their actual implementation. ccording to the High Commissioner the government had The Constitutional eform process as another key component “established several ad hoc bodies, including the Secretariat for Coordinating of the new government’s peace building and democratization econciliation echaniss, and the ffice for ational nit and promise made to the country as ell as the international econciliation, and several technical oring groups tased ith drafting community. The UNHRC Resolution 30/1 welcomed “the blueprints for the accountabilit and reconciliation echaniss to be commitment of the Government of Sri Lanka to a political established. hese bodies, hoever, are et to present a sufficientl convincing or settlement by taking the necessary constitutional measures,” and coprehensive transitional ustice strateg to overcoe the legac of istrust and encouraged “the Government’s efforts to fulfill its commitments scepticis left b a nuber of inconclusive and ad hoc coissions and on the devolution of political authority hich is integral to procedures.” reconciliation and the full enjoyment of human rights y all members of its population” aragraph . Constitutional The revie of the revention of Terrorism ct too remains an reform as an essential component of peace uilding ecause incomplete and no forgotten commitment. arlier reports more devolution has een a key theme in Tamil political demands indicated that the government as trying to introduce some hile aolition of the presidential system has een a demand in the marginal changes to the pulic security la and retain almost all of road democracy movement. The constitutional reform project its draconian provisions. Government’s vacillation to honour appears to have fallen victim to the lack of political consensus another of its important human rights commitments seems to have ithin the government over the uestion hether the presidential coincided ith the reassertion of the national security system should e aolished altogether or not. hen in early considerations that had taken a ack seat during the early months the th mendment to the Constitution that eventually reduced of the ne administration. This needs to e placed in the larger poers of the president and enhanced the poers of parliament context of the continuity of Sri Lanka’s national security state that as eing drafted there ere disagreements eteen the emerged during the ar consolidated during the ajapaksa government’s two centres of power, one headed by the resident and the other y the rime inister. hile the rime inister and the favoured a new constitution that would take Sri Lanka’s httpsreliefe.intreportsrilankareportofficeunitednationshigh commissionerhumanrightssrilankaahrc eport of the ffice of the High Commissioner for Human ights th HC esolution on Sri Lanka adopted y the Human ights Session of the HC th eruary paragraph pp. . Council on st ctoer promoting resolution accountaility and human httpsreliefe.intsitesreliefe.intfilesresourcesHC. rights in Sri Lanka. httpnirmin.gov.lkeimagespdfunhrcresolution pdf ccessed on anuary . .pdf.

104 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 to transitional justice.” The High Commissioner’s report is government of and suffered a rief and temporary retreat replete ith oservations that highlighted the gap eteen the in anuary . government promises and their actual implementation. ccording to the High Commissioner the government had The Constitutional eform process as another key component “established several ad hoc bodies, including the Secretariat for Coordinating of the new government’s peace building and democratization econciliation echaniss, and the ffice for ational nit and promise made to the country as ell as the international econciliation, and several technical oring groups tased ith drafting community. The UNHRC Resolution 30/1 welcomed “the blueprints for the accountabilit and reconciliation echaniss to be commitment of the Government of Sri Lanka to a political established. hese bodies, hoever, are et to present a sufficientl convincing or settlement by taking the necessary constitutional measures,” and coprehensive transitional ustice strateg to overcoe the legac of istrust and encouraged “the Government’s efforts to fulfill its commitments scepticis left b a nuber of inconclusive and ad hoc coissions and on the devolution of political authority hich is integral to procedures.” reconciliation and the full enjoyment of human rights y all members of its population” aragraph . Constitutional The revie of the revention of Terrorism ct too remains an reform as an essential component of peace uilding ecause incomplete and no forgotten commitment. arlier reports more devolution has een a key theme in Tamil political demands indicated that the government as trying to introduce some hile aolition of the presidential system has een a demand in the marginal changes to the pulic security la and retain almost all of road democracy movement. The constitutional reform project its draconian provisions. Government’s vacillation to honour appears to have fallen victim to the lack of political consensus another of its important human rights commitments seems to have ithin the government over the uestion hether the presidential coincided ith the reassertion of the national security system should e aolished altogether or not. hen in early considerations that had taken a ack seat during the early months the th mendment to the Constitution that eventually reduced of the ne administration. This needs to e placed in the larger poers of the president and enhanced the poers of parliament context of the continuity of Sri Lanka’s national security state that as eing drafted there ere disagreements eteen the emerged during the ar consolidated during the ajapaksa government’s two centres of power, one headed by the resident and the other y the rime inister. hile the rime inister and the favoured a new constitution that would take Sri Lanka’s httpsreliefe.intreportsrilankareportofficeunitednationshigh commissionerhumanrightssrilankaahrc eport of the ffice of the High Commissioner for Human ights th HC esolution on Sri Lanka adopted y the Human ights Session of the HC th eruary paragraph pp. . Council on st ctoer promoting resolution accountaility and human httpsreliefe.intsitesreliefe.intfilesresourcesHC. rights in Sri Lanka. httpnirmin.gov.lkeimagespdfunhrcresolution pdf ccessed on anuary . .pdf.

105 Sri Lanka: State of Human Rights: 2018

system of government back to the parliamentary model, resident distinguish between the previous administration and the current and the SL wanted to continue with the presidential system and one in Sri Lanka on the uestion of postwar peace building hile effect reforms only to the electoral system. The total abolition of there are differences, events during the past three years lend Sri Lanka’s ‘executive presidency’ was indeed a major electoral themselves increasingly to the observation that they are no more promise made by both Sirisena and ickremasinghe during the than marginal The uestion that arises in this context is whether residential election campaign of November 01 anuary 01. there is an undercurrent of continuity that is not transparently evident in the weak commitment of the present regime to peace t appears that the resident and the rime inister have not building despite the regime change reconciled their differences in approach to and the scope of constitutional reform. hen the SubCommittee of the much deeper issue seems to characterie the context that has Constitutional ssembly produced an nterim Report in blunted the Sirisenaickremasinghe administration’s September 01, indicating different positions proposed by commitment to peace building t is the continuity of what may be political parties in arliament, a wave of opposition to the idea of called ‘the national security complex’ that emerged during the war a new constitution burst forth, led by leading uddhist monks. The and finds its reemergence in the current administration t appears resident and the rime inister failed to act together to defend that the new government, when it cosponsored the the constitutional reform initiative against opposition indicating resolution 01 in 201, which contained a range of far reaching the working of the ‘realpolitik’ that Minister Samaraweera had commitments on human rights, transitional justice and flagged in his speech before the UNHRC as an obstacle to the accountability, had not factored into its strategiing the ways in progress of peace building. ventually, Samaraweera found himself which the cooperation and participation of the military and moved out of the inistry of ternal ffairs with a record of defence establishment could be secured The government also ecuses on behalf of the government for its mediocre progress in seems to have ignored the challenge arising from a victorious army, a vital component of its reform agenda. which was expected to be a partner in the government’s accountability commitments that reuired internationally credible inquiries into allegations of possible war crimes. The government’s Thus, 2017 ended with continuing uncertainties about Sri Lanka’s retreat from the accountability commitments, as it became clear by postwar peace building process. The key dimension of the the end of 2017, can be interpreted as a delayed realiation of the uncertainty is the government’s ambivalent and vacillating attitude complexity of balancing civilmilitary relations in a nonconflictual to all components of the peace building programme, manner in a context of the reassertion the ethnocratic and demonstrating the absence of a strong political will to abide by its nationalsecurity orientation of the contemporary Sri Lankan state own promises made to Sri Lankan citizens as well as the international community. This makes it difficult to fundamentally

106 Civil War, War Ending, And Dilemmas Of Peace Building In Sri Lanka, 1983-2017 system of government back to the parliamentary model, resident distinguish between the previous administration and the current and the SL wanted to continue with the presidential system and one in Sri Lanka on the uestion of postwar peace building hile effect reforms only to the electoral system. The total abolition of there are differences, events during the past three years lend Sri Lanka’s ‘executive presidency’ was indeed a major electoral themselves increasingly to the observation that they are no more promise made by both Sirisena and ickremasinghe during the than marginal The uestion that arises in this context is whether residential election campaign of November 01 anuary 01. there is an undercurrent of continuity that is not transparently evident in the weak commitment of the present regime to peace t appears that the resident and the rime inister have not building despite the regime change reconciled their differences in approach to and the scope of constitutional reform. hen the SubCommittee of the much deeper issue seems to characterie the context that has Constitutional ssembly produced an nterim Report in blunted the Sirisenaickremasinghe administration’s September 01, indicating different positions proposed by commitment to peace building t is the continuity of what may be political parties in arliament, a wave of opposition to the idea of called ‘the national security complex’ that emerged during the war a new constitution burst forth, led by leading uddhist monks. The and finds its reemergence in the current administration t appears resident and the rime inister failed to act together to defend that the new government, when it cosponsored the the constitutional reform initiative against opposition indicating resolution 01 in 201, which contained a range of far reaching the working of the ‘realpolitik’ that Minister Samaraweera had commitments on human rights, transitional justice and flagged in his speech before the UNHRC as an obstacle to the accountability, had not factored into its strategiing the ways in progress of peace building. ventually, Samaraweera found himself which the cooperation and participation of the military and moved out of the inistry of ternal ffairs with a record of defence establishment could be secured The government also ecuses on behalf of the government for its mediocre progress in seems to have ignored the challenge arising from a victorious army, a vital component of its reform agenda. which was expected to be a partner in the government’s accountability commitments that reuired internationally credible inquiries into allegations of possible war crimes. The government’s Thus, 2017 ended with continuing uncertainties about Sri Lanka’s retreat from the accountability commitments, as it became clear by postwar peace building process. The key dimension of the the end of 2017, can be interpreted as a delayed realiation of the uncertainty is the government’s ambivalent and vacillating attitude complexity of balancing civilmilitary relations in a nonconflictual to all components of the peace building programme, manner in a context of the reassertion the ethnocratic and demonstrating the absence of a strong political will to abide by its nationalsecurity orientation of the contemporary Sri Lankan state own promises made to Sri Lankan citizens as well as the international community. This makes it difficult to fundamentally

107 Sri Lanka: State of Human Rights: 2018

The discussion in this chapter suggests the conclusion that despite the periodic renewal of Sri Lanka’s peace building agenda the goal of peace has been entangled with the conflict and war. s we saw in the accounts of failed peace initiatives during the war that failure was largely due to the subection of peace to the imperatives of III war. n instances where peace efforts were made during the war they were incomplete proects that failed to address the core issues JUDICIAL PROTECTION OF FUNDAMENTAL at stae as well as roots causes of the conflict and the consequences RIGHTS of war. These unaddressed issues continue to reproduce and sustain the conflict even after the hostilities ended. This discussion Dinesha Samararatne* of the continued setbacs to peace building demonstrates the reproduction of the same pattern under conditions of no war and 1. Introduction in a context of the continuation of the national security complex. Relative to the immediately preceding years, the fundamental rights The postaapasa political order has not been effective in jurisprudence of the Supreme Court for the year 2017 indicates breaing up this vicious cycle. n fact the regime change of progress. A total of 62 judgments were issued in 2017. These has proved a necessary but inadequate precondition to disentangle judgments reflect a judicial mind that is responsive and receptive peace building from the imperatives of the national security to the petitions alleging violations of fundamental rights. Judicial complex as well as from the sharpening contradictions within the reasoning in these determinations has been more detailed than in coalition regime. s a result peace building has become secondary the immediately preceding years. Furthermore, the amount of and eventually insignificant, in importance for the government’s compensation ordered to be paid by the Court is notably higher overall agenda as well as its strategy for political survival. The issue than in the previous years. This qualitative improvement in the returns to the government agenda annually ust before the jurisprudence is complemented by the gradual progress that the session only to please the international sponsors of ri Court has achieved over the years in its work in terms of the Lanka’s illusive peace. number of determinations and the amounts of compensation granted as well.

* Senior Lecturer, Department of Public & International Law, Faculty of Law, University of Colombo. I thank Ms Sindhu Ratnarajan for her research assistance and Dr Sumudu Atappattu for reviewing this chapter.

108 The discussion in this chapter suggests the conclusion that despite the periodic renewal of Sri Lanka’s peace building agenda the goal of peace has been entangled with the conflict and war. s we saw in the accounts of failed peace initiatives during the war that failure was largely due to the subection of peace to the imperatives of III war. n instances where peace efforts were made during the war they were incomplete proects that failed to address the core issues JUDICIAL PROTECTION OF FUNDAMENTAL at stae as well as roots causes of the conflict and the consequences RIGHTS of war. These unaddressed issues continue to reproduce and sustain the conflict even after the hostilities ended. This discussion Dinesha Samararatne* of the continued setbacs to peace building demonstrates the reproduction of the same pattern under conditions of no war and 1. Introduction in a context of the continuation of the national security complex. Relative to the immediately preceding years, the fundamental rights The postaapasa political order has not been effective in jurisprudence of the Supreme Court for the year 2017 indicates breaing up this vicious cycle. n fact the regime change of progress. A total of 62 judgments were issued in 2017. These has proved a necessary but inadequate precondition to disentangle judgments reflect a judicial mind that is responsive and receptive peace building from the imperatives of the national security to the petitions alleging violations of fundamental rights. Judicial complex as well as from the sharpening contradictions within the reasoning in these determinations has been more detailed than in coalition regime. s a result peace building has become secondary the immediately preceding years. Furthermore, the amount of and eventually insignificant, in importance for the government’s compensation ordered to be paid by the Court is notably higher overall agenda as well as its strategy for political survival. The issue than in the previous years. This qualitative improvement in the returns to the government agenda annually ust before the jurisprudence is complemented by the gradual progress that the session only to please the international sponsors of ri Court has achieved over the years in its work in terms of the Lanka’s illusive peace. number of determinations and the amounts of compensation granted as well.

The overall trend in terms of the types of fundamental rights that Figure 2 are challenged before the Court however continued in 2017 as well. Fifty-two of the 62 judgments were regarding allegations of the Year Judgments Art 121 Art 112 Art 133 Other violation of the right to equality. Of these 52 judgments, 20 of the g h a c g cases were with regard to recruitment, promotions and transfers in eg the public service while 10 cases were with regard to school a c admissions. Twelve cases were with regard to the right to be free from torture. These statistics suggest that the jurisdiction of the g Court under Article 126 continues to be used primarily as a remedy for review of the administrative functions of the state in relation to the public service and school admissions. In keeping with the 2. International Human Rights Law existing trend, it is only in a relatively smaller number of cases that the end of ri anka was a signator to all the maor the Court had the opportunity to determine guarantees of human rights treaties and had acceted the individual etition fundamental rights such as the right to be free from torture. The mechanism under the nternational Covenant on Civil and olitical table below describes the overall patterns since 2010 with regard to ights CC as well as under the Convention for the the fundamental rights which have been invoked in the Court’s limination of ll orms of iscrimination against omen judgments. C n the reorts on the missions of two ecial aorteurs to ri anka were tabled before the uman ights

Figure 1 rt guarantees the following – to all ersons the right to eualit before the law and the eual rotection of the law to all ersons rt to

Year Number of In favour Dismissed Other Awards of Awards citiens the guarantee of nondiscrimination rt the guarantee of eual Judgments of Compensation of Petitioner Costs access to ublic laces and laces of ublic worshi to all ersons rt 2017 62 31 27 4 16 18 and for ‘special provisions’ for ‘women, children disabled persons’ (Art 12(4)). 2016 44 25 18 02 15 05 Art 11 guarantees that no person shall be ‘subjected to torture or to cruel, 2015 16 04 10 02 03 - inhuman or degrading treatment or unishment 2014 19 04 11 04 - 01 rt guarantees the right to freedom from arbitrar arrest detention and 2013 13 06 07 - 02 01 unishment 2012 09 02 06 01 - 02 rt stiulates the grounds on which the eercise of fundamental rights can 2011 09 01 06 02 01 - be restricted. These grounds include ‘interests of national security’ and 2010 12 03 09 01 02 03 ‘interests of racial and religious harmony’. It is noteworthy that the Constitution rovides an absolute guarantee to the freedom of thought conscience and religion and the freedom from torture rt g guarantees the individual or collective freedom to engage in a lawful occuation rofession business etc

110 Judicial Protection Of Fundamental Rights

Figure 1 rt guarantees the following – to all ersons the right to eualit before the law and the eual rotection of the law to all ersons rt to

111 Sri Lanka: State of Human Rights: 2018

ouncil and oncluding bservations were issued by the sustainable.’ e ae seii bseatins eain te A ommittee and the ommittee on conomic, ocial and inaessibilit te ee ilatins unaental its ultural ights. urthermore ri ana completed its third cycle of niversal eriodic eview in 21. he Supreme Court has the authority to receive applications from persons seeing remedy for the infringement by eecutive or In his report, the pecial rapporteur on torture and other cruel, administrative action of any of the fundamental rights enshrined in inhuman or degrading treatment or punishment observed the the Constitution. If it finds that a violation has occurred, the Court weanesses in the fundamental rights petition mechanism in can order compensation and mae recommendations, but its decisions remedying the violation of the right to be free from torture. e cannot be appealed. hile this is an important avenue for lodging further noted the significant baclog of cases before the upreme complaints for violations of fundamental rights, it fails to reach the ourt. most vulnerable. Indeed, many victims cannot afford to travel to Colombo and hire a local layer to file the application, hile some ‘In practice, the only effective avenues for complaints are filing a others fear reprisals if they ere to do so. here are also language “fundamental rights” case before the Supreme Court or submitting the barriers and a time limit of one month, hich can prove case to the ational uman ights Commission. oever, insurmountable. Some police officers have allegedly offered money to fundamental rights applications involve costly, comple litigation and victims or their families agreeing not to file a complaint. oreover, are therefore not accessible to all victims. In addition, the application according to the Chief ustice, there is a baclog of approimately is not available to vacate a court order that has been based on a forced , applications. confession, as it does not lie against udicial decisions. oreover, according to the Chief ustice, there is a orrying baclog of e et te eial ateu n init issues n e approimately , fundamental rights cases before the Supreme isit t i ana i nt seiiall us n te ee Court.’ unaental its ilatins. ee te et ilite te eanesses in init its tetin in i ana inluin In her report to the uman ights ouncil, the pecial apporteur bseatins eain te bles it etain isins te on the Independence of the Judiciary observed that the ‘extreme nstitutin. tile te nstitutin elaes tat all form of legal dualism’ in Sri Lanka’s legal system is ‘not eistin itten an unitten las eain ali ntitstanin tei innsisten it te unaental its ate. e

et te eial ateu n te ineenene ues an laes eport of the pecial rapporteur on torture and other cruel, inhuman or n e issin t i ana . a aa . degrading treatment or punishment on his mission to ri ana et te eial ateu n te ineenene ues an laes (A44Add.2 22 ecember 21) para . n e issin t i ana . a aa .

112 Judicial Protection Of Fundamental Rights

113 Sri Lanka: State of Human Rights: 2018

eial ateu inte ut tat tis tile tets las tat 3. Right to Equality ae isiinat en in init us – nael usli he right to euality continues to be interpreted primarily as a right en an en ene une esaalamai la. iila that protects persons from arbitrary use of public poer ithin the bseatins ee ae eain te eanesses in te notion of formal euality. n ri ana, the right to euality tetin ae t uan its b te ittee jurisprudence has not been fleshed out in relation to the right to be an te . instane te ntes tat ile te free from discrimination even though discrimination on the basis uee ut as elie n te ietie iniles tate of ethnicity, religion and se has been consistently documented. li in inteetin te it t eualit tat te uisuene ubstantive euality is yet to be read into the right to euality in falls short of a ‘comprehensive catalogue of judicially enforceable the fundamental rights jurisprudence of ri ana. his trend economic, social and cultural rights.’ e ittee continued in . eene te intutin uiial eie leislatin t e las tat isiinate aainst en. 3.1. Review of administrative action udgments that revieed administrative actions on the basis that s eient te eall attens isusse in te intutin they violated the right to euality interpreted the right as including te uiial inteetatin unaental its in is a prohibition on decisions that are arbitrary, unreasonable and enable elatie t te uisuene in te ieiatel illegal. or instance, in the case of endis v. irector eneral, ubber eein eas. e bseatins ae b te intenatinal epartment, remadasa etensive reference as made to the ndian nitin eanis te uiial tetins ee case of oyappa v. the State of amil adu in holding that arbitrary unaental its in i ana ints t aeas tat euie ute and unfair actions of administrators comes ithin the purvie of ieent inluin las elas aailabilit leal ai the right to euality in ri ana. ther types of complaints that aessibilit te ee an te nstitutinal tetin came before the ourt as violations of the right to euality included ae t eeistin las tat ae innsistent it challenges to disciplinary inuiries. or instance, in the case of unaental its. andasiri v. ssistant Superintendent, olice eaduarters, ayasinghe

ee for instance, ehan unatillee, he Chronic and the ntrenched thno religious iolence in Sri ana nternational entre for thnic tudies uitas Seual arassment on ublic uses and rains ebruary . et te eial ateu n init issues n e issin t i ieseara v rincipal, aliyadeva alia idyalaya, urunegala , ana . anua aa . upreme ourt inutes ctober . nluin bseatins n te it eii et i ana , upreme ourt inutes une . . uust aa . oyappa v State of amil adu and nother , nluin bseatins n te eit eii et i ana a aa . , upreme ourt inutes ugust , .

114 Judicial Protection Of Fundamental Rights

115 Sri Lanka: State of Human Rights: 2018

the court ‘quashed’ a disciplinary order and ordered the Inspector issued by the Provincial Education irector of the estern General of Police to ‘impose a punishment that is commensurate Province to the onal irector of Education in Colombo. In this ith the disciplinary breaches’. The case of anayae v I, letter the Provincial irector had directed the onal irector to alasooriya as similar. he petitioner as a eserve olice compulsorily admit the petitioners to certain schools in the onstable ho challenged his suspension from service. Colombo one. The Court dismissed the petitions on the basis that none of the petitioners had scored the marks required for 3.2. School admissions admission to these schools. The Court’s time is taken up with petitions that allege a violation of the right to euality due to noncompliance ith due process in In the past, in determining petitions that challenge non admission determining admissions to schools. n ri ana, education is to schools, the Supreme Court has served as a review mechanism provided by the state, free of charge, from primary school upards. and has primarily concerned itself with the relevant facts. The case dmission to state schools is regulated by the state through a of e Silva v. rincipal and Chairman Intervie oard, harmashoa maring scheme. maring scheme determines the points that idyalaya mbalangoda, araramaansha is refreshing in that it each applicant can be allocated and a cut off mar is determined offers a much needed interpretation of the right to access based on the number of positions that are available in a given education in Sri anka as an aspect of the right to equality. The school. s evident in the case of Saman v rincipal, harmashoa Court noted the history of free education in Sri anka. lthough idyalaya mbalangoda, eththimuni, these petitions reuire the the Constitution does not recognize a fundamental right to ourt to revie the application of the maring scheme for school education, ‘the complete eradication of illiteracy and the assurance admissions, the validity of factual claims that are made ith regard to all persons of the right to universal and equal access to to the residence of applicants etc. he number of fundamental education’ is a directive principle. The Court relied on Seneviratne rights judgments that are issued on this aspect indicates the C and the more recent case of atte edera iebanda v. challenges parents face in ensuring admission of children to school. Conservator eneral of orests in holding that ‘although the or instance, the case of adhurangana v involved Constitution states that irective Principles do not impose legal petitioners from one school ho challenged the nonadmission to rights or obligations and they are not usticiable, our courts have particular schools for their secondary education. tudents in state given effect to irective Principles as long as they do not conflict primary schools can see admission to other secondary schools with other Articles of the Constitution.’ ccordingly Court based on their performance at a standardized test (the ‘Scholarship

Exam’). The petitioners, from primary schools, relied on a directive SC () , Supreme Court inutes ugust . SC () , Supreme Court inutes ugust , . , , upreme ourt inutes ctober . Sri . , upreme ourt inutes ecember . Sri . , upreme ourt inutes uly . SC () , Supreme Court inutes ugust , .

116 Judicial Protection Of Fundamental Rights the court ‘quashed’ a disciplinary order and ordered the Inspector issued by the Provincial Education irector of the estern General of Police to ‘impose a punishment that is commensurate Province to the onal irector of Education in Colombo. In this ith the disciplinary breaches’. The case of anayae v I, letter the Provincial irector had directed the onal irector to alasooriya as similar. he petitioner as a eserve olice compulsorily admit the petitioners to certain schools in the onstable ho challenged his suspension from service. Colombo one. The Court dismissed the petitions on the basis that none of the petitioners had scored the marks required for 3.2. School admissions admission to these schools. The Court’s time is taken up with petitions that allege a violation of the right to euality due to noncompliance ith due process in In the past, in determining petitions that challenge non admission determining admissions to schools. n ri ana, education is to schools, the Supreme Court has served as a review mechanism provided by the state, free of charge, from primary school upards. and has primarily concerned itself with the relevant facts. The case dmission to state schools is regulated by the state through a of e Silva v. rincipal and Chairman Intervie oard, harmashoa maring scheme. maring scheme determines the points that idyalaya mbalangoda, araramaansha is refreshing in that it each applicant can be allocated and a cut off mar is determined offers a much needed interpretation of the right to access based on the number of positions that are available in a given education in Sri anka as an aspect of the right to equality. The school. s evident in the case of Saman v rincipal, harmashoa Court noted the history of free education in Sri anka. lthough idyalaya mbalangoda, eththimuni, these petitions reuire the the Constitution does not recognize a fundamental right to ourt to revie the application of the maring scheme for school education, ‘the complete eradication of illiteracy and the assurance admissions, the validity of factual claims that are made ith regard to all persons of the right to universal and equal access to to the residence of applicants etc. he number of fundamental education’ is a directive principle. The Court relied on Seneviratne rights judgments that are issued on this aspect indicates the C and the more recent case of atte edera iebanda v. challenges parents face in ensuring admission of children to school. Conservator eneral of orests in holding that ‘although the or instance, the case of adhurangana v involved Constitution states that irective Principles do not impose legal petitioners from one school ho challenged the nonadmission to rights or obligations and they are not usticiable, our courts have particular schools for their secondary education. tudents in state given effect to irective Principles as long as they do not conflict primary schools can see admission to other secondary schools with other Articles of the Constitution.’ ccordingly Court based on their performance at a standardized test (the ‘Scholarship

117 Sri Lanka: State of Human Rights: 2018

declared that the right to eualit should e interpreted to include r rre l e r eld a e eners ad the right of eual access to education. t is regrettale that the aled esals a e dela n rnal reedns ave Court ade no reference to the provisions of the CC or to caused ‘suffering and trauma’ to the victim, it held that the delay the eneral Coent on the ight to ducation in its ad vlaed e r eal e eners and ea interpretation which elaorates on the eaning of access to ener as aarded s as ensan aale e education. sae

3.3 Forfeiture of property rights 3.5 Local authority elections n the case of Sivaraah v. IC, I the Court held with the n e ase uhammed v lection Commission of Sri ana e petitioner who alleged that his propert was forfeited under the r ad deerne eer e alre nd e ergenc egulations at the tie. Court deterined that the elens al res aned a vlan e r discretion vested with the inister under these regulations is not eal e ener l s en ad unfettered and can onl e eercised on the asis of relevant facts. lans r l neres e ener led nl n ers Court found that rules of natural ustice had not een coplied an alleed vlan s r eal e r ned a with and that there was no evidence to support the clai that the e nser al Gvernen and rvnal nls ad n propert was eing used the petitioner for criinal activities made representations to Court and that it would ‘take it for granted which would ustif forfeiture under the ergenc egulations. a e nser as n ese r san er elan the delay.’ avn ned a e dela n e delans 3.4 Laws delays ress as n een elaned r deended e nser or the first tie, dela in criinal prosecution was included as a nerned e r eld e ener and dreed e violation of the right to eualit. n the case of erera v. I resndens nd e elens e al res Ilangaoon the fail eers of a urder victi alleged that the without ‘further delay’. dela of ears in receiving the AttorneGeneral’s advice in the criinal proceedings aounted to a violation of their right to s den as ven e r n eeer eualit. he petitioners claied that the dela in investigations ever an aenden e ocal uthorities lections ct as and prosecution had resulted in a violation of their right to e free aded n e s s a ear nrded a a seas r en n all lal ares rever e

eneral Coent of the CC . eleral sse as aned r rrnal reresenan C , upree Court inutes ul . ergenc egulations as declared aette etraordinar of ree r nes eeer anuar . ree r nes eeer C , upree Court inutes oveer . ocal uthorities lections mendment ct o of .

118 Judicial Protection Of Fundamental Rights declared that the right to eualit should e interpreted to include r rre l e r eld a e eners ad the right of eual access to education. t is regrettale that the aled esals a e dela n rnal reedns ave Court ade no reference to the provisions of the CC or to caused ‘suffering and trauma’ to the victim, it held that the delay the eneral Coent on the ight to ducation in its ad vlaed e r eal e eners and ea interpretation which elaorates on the eaning of access to ener as aarded s as ensan aale e education. sae

119 Sri Lanka: State of Human Rights: 2018

a miedmemer proportional representation system. he against Torture and other Cruel nhuan or egrading Treatent udgment, however, made no reference to this mendment and or unishent in its udicial reasoning. considered the law as it stood prior to it. ince the petition was filed in which was prior to this mendment, the Court seems f the cases alleging torture that were decided in the case of to confine itself to a determination of the conduct of the unaseara v. Sub Inspector thuorala, eetiyagoda olice Station is responded in relation to the law as it stood then. he introduction unusual in that a petitioner who alleged that he was ‘subjected to of a uota system in argualy was not directly relevant to the torture and to cruel inhuman and degrading treatments [sic]’ files delay in the delimitation process. evertheless, for the purpose of a fundaental rights petition alleging a violation of the right to clarity, it would have een desirale for the Court to note that at euality. There is no clarity on why the petitioner chose to clai the time of issuing udgment, the law relating to elections to ocal only a violation of the right to euality. Three respondents were uthorities stood further amended and included a uota for not represented in this case. The Court agreed with the petitioner women. and granted copensation as well as costs. owever the Court did not ake any observations as to the applicability of rt to this 4. Right to be Free from Torture petition. he upreme Court continued to receive petitions that alleged gruesome forms of cruel, inhuman or degrading treatment y the n the case of ainianth v. IC ulathsinhala olice Station the police. n spite of the efforts y civil society to address this petitioner alleged that the police subected hi to gruesoe fors unacceptale and unconstitutional practice, torture continues. n of cruel inhuan and degrading treatent aounting to torture. the udgments that the Court issued in , the Court owever the Court found that the evidence placed before the demonstrated receptivity and empathy to victims of torture. Court did not eet the standard of proof that the petitioner ust owever, the Court continued to apply the reuirement of medical satisfy. The Court followed the cases of ivienne uneardena v evidence to estalish torture. he standard of proof remains a erera and Channa eiris v ttorney eneral in deterining the ‘balance of probability’. The alleged violations of the right to be standard of proof free from torture revealed the limitations of the remedy under rt . etitioners who have suffered one of the worst forms of violations of their fundamental rights guarantees are reuired to estalish within a month, corroorated medical evidence through Sri Lanka ratified this treaty in and its ptional rotocol in . a lawyer, in Colomo, in order to succeed. n spite of the SC Supree Court inutes uly . receptivity of the Court to these petitions in it is noteworthy SC Supree Court inutes uly . that the Court did not draw upon Sri Lanka’s obligations under SC Supree Court inutes Septeber . Sri L . international law including its oligations under the Convention Sri L .

120 Judicial Protection Of Fundamental Rights a miedmemer proportional representation system. he against Torture and other Cruel nhuan or egrading Treatent udgment, however, made no reference to this mendment and or unishent in its udicial reasoning. considered the law as it stood prior to it. ince the petition was filed in which was prior to this mendment, the Court seems f the cases alleging torture that were decided in the case of to confine itself to a determination of the conduct of the unaseara v. Sub Inspector thuorala, eetiyagoda olice Station is responded in relation to the law as it stood then. he introduction unusual in that a petitioner who alleged that he was ‘subjected to of a uota system in argualy was not directly relevant to the torture and to cruel inhuman and degrading treatments [sic]’ files delay in the delimitation process. evertheless, for the purpose of a fundaental rights petition alleging a violation of the right to clarity, it would have een desirale for the Court to note that at euality. There is no clarity on why the petitioner chose to clai the time of issuing udgment, the law relating to elections to ocal only a violation of the right to euality. Three respondents were uthorities stood further amended and included a uota for not represented in this case. The Court agreed with the petitioner women. and granted copensation as well as costs. owever the Court did not ake any observations as to the applicability of rt to this 4. Right to be Free from Torture petition. he upreme Court continued to receive petitions that alleged gruesome forms of cruel, inhuman or degrading treatment y the n the case of ainianth v. IC ulathsinhala olice Station the police. n spite of the efforts y civil society to address this petitioner alleged that the police subected hi to gruesoe fors unacceptale and unconstitutional practice, torture continues. n of cruel inhuan and degrading treatent aounting to torture. the udgments that the Court issued in , the Court owever the Court found that the evidence placed before the demonstrated receptivity and empathy to victims of torture. Court did not eet the standard of proof that the petitioner ust owever, the Court continued to apply the reuirement of medical satisfy. The Court followed the cases of ivienne uneardena v evidence to estalish torture. he standard of proof remains a erera and Channa eiris v ttorney eneral in deterining the ‘balance of probability’. The alleged violations of the right to be standard of proof free from torture revealed the limitations of the remedy under rt . etitioners who have suffered one of the worst forms of violations of their fundamental rights guarantees are reuired to estalish within a month, corroorated medical evidence through Sri Lanka ratified this treaty in and its ptional rotocol in . a lawyer, in Colomo, in order to succeed. n spite of the SC Supree Court inutes uly . receptivity of the Court to these petitions in it is noteworthy SC Supree Court inutes uly . that the Court did not draw upon Sri Lanka’s obligations under SC Supree Court inutes Septeber . Sri L . international law including its oligations under the Convention Sri L .

121 Sri Lanka: State of Human Rights: 2018

‘…it is clear that though alleged infringement of fundamental rights ‘To place this kind of very low standards of proof of absence of the hae to e proed on a alance of proailit or on a preponderance etitioner from the police station, during that period, inside the of eidence as in a ciil case the ourt reuires a high degree of proof olice tation, is incredible. view this kind of action as despicable ithin that standard tpical ith the nature of the allegations made and absurd. o court would ever be willing to rely on affidavits by hile at the same time ensuring that no undue urden is placed upon suspects and detainees in the custody of the police, to safeguard the a petitioner.’ police officers under who the said suspects and detainees were living their lives inside the cell of the police station, during that period.’ similar approach was adopted in the case of erathna hief nspector harmaratne decided the same ear n this case the ourt noted that the methods of torture that hae been employed left minimal scars on the petitioner and noted that he case of icremapathirana . u nspector alatura is the ourt should recognie such forms of torture een in the noteworth in terms of the sensitiit demonstrated b the ourt absence of medical eidence. his obseration is a welcome towards the plight of a ictim of torture he petitioner had been change in the general attitude of the ourt which is to insist on subjected to torture for seen das he respondents claimed that medical eidence of torture or of cruel inhuman or degrading the petitioner had not complained of torture when he was treatment or punishment. produced before a agistrate he ourt responded to this claim by noting that ‘Nobody who was tortured at a police station would he case of aidos v. nspector aith, oratuwa inoled facts eer be not scared to complain to the judge at such a time when he that showed how abuse of power by the police leads to etreme was at the mercy of the judge and the police to get bail.’ he forms of iolations of fundamental rights including the iolation respondents had submitted affidaits from other suspects who of the right to be free from torture. he petitioner was arrested were in police custody at the time to support the respondent’s purportedly on suspicion of committing theft. e was informed of claim that the petitioner had not been held in detention for the said this on or about the third day of his detention. oweer the law period ourt rejected these affidaits and noted reuires that suspects be produced before a agistrate within hours of arrest and detention for some offences and within hours in relation to other offences. he petitioner was subjected to seere forms of torture by the police. he petitioner was produced before a agistrate only about seen days after arrest by ainianth ulathsinhala olice tation eptember which time the police had framed the petitioner for two offences upreme ourt inutes ugust related to the possession of narcotics. he agistrate found that upreme ourt inutes a the petitioner was falsely implicated in both cases and that the upreme ourt inutes a upreme ourt inutes a petitioner had been ‘assaulted and treated inhumanely.’ oweer

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there is no eidene to suest that the aistrate reommended 5. Right to be Free from Arbitrary Arrests proseution o the polie oiers or een disiplinary ation. he f the cases that alleged a violation of the right to liberty under Supreme Court declared that the petitioner’s right to be free from rticle the incidents leading up to the case of okean v. torture and the riht to be ree rom arbitrary arrest had been ttorney eneral received significant publicity in . ritish iolated. sum o s as aarded as ompensation. woman visiting Sri anka was subected to arbitrary arrest oeer the ourt made no diretion to the ttorneyeneral detention and deportation because of a tattoo of the uddha on or inestiation and proseution o the respondents under the her arm. The tourist was accosted by a tai driver and taken to a onvention against Torture and other ruel, nhuan or egrading police station. Thereafter in complete disregard of the law she was Treatent or unishent ct. subected to detention and an order for deportation was issued. She was not given an opportunity to contact the ritish igh detention was paraded in public as the ‘grease yaka’ – the niname Commission. oreover popularly attributed at that time to men ho ere subetin omen to seual harassment. here ourt reonied the She was subected to inhuman treatment including seual psyholoial aspets o the riht to be ree rom torture. he harassment and being solicited for bribes. fter a detailed petitioner as subeted to arbitrary arrest and durin his ue to description of the relevant facts Court observed that ‘there was no the horrii eperiene o torture he endured the petitioner legal basis or a right to arrest the Petitioner at all.’ Accordingly, the eentually dropped out o his oational trainin proramme. e Court held that her right to euality right to be free from torture ontinued to eperiene stima due to the publi shamin that he and the right to be free from arbitrary arrest detention and as subeted to by the polie and had been reeiin treatment at punishment had been violated. The state was ordered to pay s a psyhiatry lini. n addition to the ompensation aard o s as compensation and s as costs to the petitioner. the ourt direted the ttorneyeneral to tae neessary ation aainst the respondents. n the case of riyawansa v. inistry of efence, otabhaya aapakshe the Court had to determine whether the arrest and detention of the petitioner under a detention order was a violation of the right to euality and the right to be free from torture. The petitioner filed upreme ourt inutes ay . the petition as a remandee. aving considered the relevant facts upreme ourt inutes anuary . which related to the investigations into the murder of the ournalist …Note that persons arrested under the Prevention of Terrorism…. o o upreme ourt inutes uly . rease yaas ere reported durin these times as athin omen undress SC Supreme Court inutes uly . throuh bedroom indos et. SC Supreme Court inutes ebruary .

124 Judicial Protection Of Fundamental Rights there is no eidene to suest that the aistrate reommended 5. Right to be Free from Arbitrary Arrests proseution o the polie oiers or een disiplinary ation. he f the cases that alleged a violation of the right to liberty under Supreme Court declared that the petitioner’s right to be free from rticle the incidents leading up to the case of okean v. torture and the riht to be ree rom arbitrary arrest had been ttorney eneral received significant publicity in . ritish iolated. sum o s as aarded as ompensation. woman visiting Sri anka was subected to arbitrary arrest oeer the ourt made no diretion to the ttorneyeneral detention and deportation because of a tattoo of the uddha on or inestiation and proseution o the respondents under the her arm. The tourist was accosted by a tai driver and taken to a onvention against Torture and other ruel, nhuan or egrading police station. Thereafter in complete disregard of the law she was Treatent or unishent ct. subected to detention and an order for deportation was issued. She was not given an opportunity to contact the ritish igh detention was paraded in public as the ‘grease yaka’ – the niname Commission. oreover popularly attributed at that time to men ho ere subetin omen to seual harassment. here ourt reonied the She was subected to inhuman treatment including seual psyholoial aspets o the riht to be ree rom torture. he harassment and being solicited for bribes. fter a detailed petitioner as subeted to arbitrary arrest and durin his ue to description of the relevant facts Court observed that ‘there was no the horrii eperiene o torture he endured the petitioner legal basis or a right to arrest the Petitioner at all.’ Accordingly, the eentually dropped out o his oational trainin proramme. e Court held that her right to euality right to be free from torture ontinued to eperiene stima due to the publi shamin that he and the right to be free from arbitrary arrest detention and as subeted to by the polie and had been reeiin treatment at punishment had been violated. The state was ordered to pay s a psyhiatry lini. n addition to the ompensation aard o s as compensation and s as costs to the petitioner. the ourt direted the ttorneyeneral to tae neessary ation aainst the respondents. n the case of riyawansa v. inistry of efence, otabhaya aapakshe the Court had to determine whether the arrest and detention of the petitioner under a detention order was a violation of the right to euality and the right to be free from torture. The petitioner filed upreme ourt inutes ay . the petition as a remandee. aving considered the relevant facts upreme ourt inutes anuary . which related to the investigations into the murder of the ournalist …Note that persons arrested under the Prevention of Terrorism…. o o upreme ourt inutes uly . rease yaas ere reported durin these times as athin omen undress SC Supreme Court inutes uly . throuh bedroom indos et. SC Supreme Court inutes ebruary .

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arbitrary arrest and detention. owever, the Court only ade an 7. Right to Information order for copensation. he Court did not declare that the The case of e ilva v. rie inister, anil ickreasinghe is the detention order was a violation of the fundaental rights first udgment to be issued in relation to the right to information guarantee. or did it order that the reandee be released. that was included among other provisions in the onstitution by the th mendment in . The petitioner alleged that the 6. Environmental Justice refusal to release the interim report of the arliamentary wo petitions that concerned environental ustice were ommittee on ublic nterprises amounted to a violation deterined by the Court in . ne of the is discussed under of his right to information. The petitioner sought access to the the ‘Time Bar’ as the petition was declared to be out of tie. he report in order to now the findings of the ommittee on the Court granted leave to proceed in the case of harasuriya v. allegations of corruption with regard to the issuance of bonds by ahaweli uthority of ri anka where the petitioner filed a petition the entral Ban in . The ourt however upheld the in the public interest challenging the decision of the ahaweli preliminary obections of the respondents and dismissed the Authority to issue perits to the respondents for construction on petition stating that until the nterim eport had been tabled in ictoria eservoir reservation lands. he respondents claied that arliament the arliaent owers and rivileges ct prohibits its the petitioner was out of tie. Court reected this clai stating that the fundaental rights ust be interpreted in light of the irective upreme ourt inutes ebruary . Principles of tate Policy. hese Principles, according to Court, ample for ri anan urisprudence on environmental ustice include ‘define the constitutional goals’ and ‘set forth the standards or ulankulaa v. ecy in of ndutrial evelopent ri and atte nors of reasonableness which ust guide and aniate edara iebanda v. onservator enaral of orest ri . amples of applicable insternational standarda include the unstainable evelopment government action.’ oals esolution of the nited ation eneral ssembly Transformng our orld the genda for ustainable evelopment. C , upree Court inutes ebruary . upreme ourt inutes ebruary . C , upree Court inutes ebruary , . rt of the onstitution.

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asantha icraatunga, Court noted that there was no basis for The Court recognsied that ‘there is a constitutional imperative on the arrest of the petitioner. he Court reasoned that if there was the tate and its agencies not only to ensure and safeguard proper no basis for the arrest then the detention that followed too was environment sicbut also an imperative duty to tae adequate arbitrary. Court held that of the si respondents that were cited in measures to promote protect and improve the natural the petition, that the nspector of Police was responsible for environment.’ This determination though commendable could violating the petitioner’s right to equality and the right to be free have been strengthened if it drew upon ri anan urisprudence fro on environmental ustice and applicable international law. arbitrary arrest and detention. owever, the Court only ade an 7. Right to Information order for copensation. he Court did not declare that the The case of e ilva v. rie inister, anil ickreasinghe is the detention order was a violation of the fundaental rights first udgment to be issued in relation to the right to information guarantee. or did it order that the reandee be released. that was included among other provisions in the onstitution by the th mendment in . The petitioner alleged that the 6. Environmental Justice refusal to release the interim report of the arliamentary wo petitions that concerned environental ustice were ommittee on ublic nterprises amounted to a violation deterined by the Court in . ne of the is discussed under of his right to information. The petitioner sought access to the the ‘Time Bar’ as the petition was declared to be out of tie. he report in order to now the findings of the ommittee on the Court granted leave to proceed in the case of harasuriya v. allegations of corruption with regard to the issuance of bonds by ahaweli uthority of ri anka where the petitioner filed a petition the entral Ban in . The ourt however upheld the in the public interest challenging the decision of the ahaweli preliminary obections of the respondents and dismissed the Authority to issue perits to the respondents for construction on petition stating that until the nterim eport had been tabled in ictoria eservoir reservation lands. he respondents claied that arliament the arliaent owers and rivileges ct prohibits its the petitioner was out of tie. Court reected this clai stating that the fundaental rights ust be interpreted in light of the irective upreme ourt inutes ebruary . Principles of tate Policy. hese Principles, according to Court, ample for ri anan urisprudence on environmental ustice include ‘define the constitutional goals’ and ‘set forth the standards or ulankulaa v. ecy in of ndutrial evelopent ri and atte nors of reasonableness which ust guide and aniate edara iebanda v. onservator enaral of orest ri . amples of applicable insternational standarda include the unstainable evelopment government action.’ oals esolution of the nited ation eneral ssembly Transformng our orld the genda for ustainable evelopment. C , upree Court inutes ebruary . upreme ourt inutes ebruary . C , upree Court inutes ebruary , . rt of the onstitution.

127 Sri Lanka: State of Human Rights: 2018

release. Court urther recognied that the undamental rights he reasonin of the ourt in this case is commendable remed is availale onl against eecutive or administrative action particularly at a time when ublicrivate partnerships are and not ith regard to the actions o the legislature. increasin and the state is establishin new institutions and proects. he rapidly evolvin nature of the state reuires a 8. Public Functions Test revision of the traditional criteria for the application of public law. n the case o aptain beygunewardena v. ri anka orts uthority his case clearly lays down the test that could be applied in such the Court had to determine hether an incorporated compan contets. could e suected to the undamental rights urisdiction o the upreme Court. he petitioner argued that the compan as 9. Epistolary Jurisdiction essentiall controlled the state and as oned the state. he or the first time since the reconition of the epistolary respondents’ claim relied primarily on the absence of a statutory urisdiction in the mids the Supreme ourt had the asis in arguing that the compan as not an agenc o the state. opportunity to eercise it in . his is a provision for he Court engaged in a detailed analsis o the development o complainin of violations of fundamental rihts by way of a letter what it identified as the ‘functional test’ or the ‘Governmental addressed to the Supreme ourt. he ourt noted in the case of control test’ in Sri Lanka and adopted the test of ‘the real haaraanie . Actin rincial ollee of urin Aara relationship hich eists eteen the tate and a corporate anaanayaa that the petitioner invoked its epistolary body.’ ccordingl Court noted urisdiction. he ourt however did not reveal the nature or other specific details of the complaint made by the petitioner. Though these corporate bodies are legal persons in their own right rom the time the matter was taken up by the ourt proceedins and their legal identity is distinct fro the tate, they often operate reveal that the petitioner had failed to comply with applicable in ters of tate policy or are closely associated with the tate or Supreme ourt rules in convertin her letter to a petition. he perfor functions on behalf of the tate or are largely controlled by ttorneyGeneral took the position that the petitioner had failed the State or are financed by the State…Frequently, the power and to specify the fundamental riht that had been alleedly violated authority of the tate lies behind these corporate bodies when they by the respondents. deal with the people. They are, in truth and fact, agencies or instruentalities of the tate which, therefore ust be held to be n persons who had been arbitrarily and indefinitely detained followin the second youth insurrection in Sri Lanka approimately bound by Article 4(d) (…). complained in writin to the Supreme ourt. he ourt then converted the letters to petitions and proceeded to make determinations C upreme Court inutes anuar . reardin the constitutionality of those arrests and detentions. Soon aptain beygunewardena v ri ankan orts uthority, C thereafter the Supreme ourt amended its rules to reconise an epistolary upreme Court inutes anuar . urisdiction. aptain beygunewardena v ri ankan orts uthority, C S Supreme ourt inutes uust . upreme Court inutes anuar .

128 Judicial Protection Of Fundamental Rights release. Court urther recognied that the undamental rights he reasonin of the ourt in this case is commendable remed is availale onl against eecutive or administrative action particularly at a time when ublicrivate partnerships are and not ith regard to the actions o the legislature. increasin and the state is establishin new institutions and proects. he rapidly evolvin nature of the state reuires a 8. Public Functions Test revision of the traditional criteria for the application of public law. n the case o aptain beygunewardena v. ri anka orts uthority his case clearly lays down the test that could be applied in such the Court had to determine hether an incorporated compan contets. could e suected to the undamental rights urisdiction o the upreme Court. he petitioner argued that the compan as 9. Epistolary Jurisdiction essentiall controlled the state and as oned the state. he or the first time since the reconition of the epistolary respondents’ claim relied primarily on the absence of a statutory urisdiction in the mids the Supreme ourt had the asis in arguing that the compan as not an agenc o the state. opportunity to eercise it in . his is a provision for he Court engaged in a detailed analsis o the development o complainin of violations of fundamental rihts by way of a letter what it identified as the ‘functional test’ or the ‘Governmental addressed to the Supreme ourt. he ourt noted in the case of control test’ in Sri Lanka and adopted the test of ‘the real haaraanie . Actin rincial ollee of urin Aara relationship hich eists eteen the tate and a corporate anaanayaa that the petitioner invoked its epistolary body.’ ccordingl Court noted urisdiction. he ourt however did not reveal the nature or other specific details of the complaint made by the petitioner. Though these corporate bodies are legal persons in their own right rom the time the matter was taken up by the ourt proceedins and their legal identity is distinct fro the tate, they often operate reveal that the petitioner had failed to comply with applicable in ters of tate policy or are closely associated with the tate or Supreme ourt rules in convertin her letter to a petition. he perfor functions on behalf of the tate or are largely controlled by ttorneyGeneral took the position that the petitioner had failed the State or are financed by the State…Frequently, the power and to specify the fundamental riht that had been alleedly violated authority of the tate lies behind these corporate bodies when they by the respondents. deal with the people. They are, in truth and fact, agencies or instruentalities of the tate which, therefore ust be held to be n persons who had been arbitrarily and indefinitely detained followin the second youth insurrection in Sri Lanka approimately bound by Article 4(d) (…). complained in writin to the Supreme ourt. he ourt then converted the letters to petitions and proceeded to make determinations C upreme Court inutes anuar . reardin the constitutionality of those arrests and detentions. Soon aptain beygunewardena v ri ankan orts uthority, C thereafter the Supreme ourt amended its rules to reconise an epistolary upreme Court inutes anuar . urisdiction. aptain beygunewardena v ri ankan orts uthority, C S Supreme ourt inutes uust . upreme Court inutes anuar .

129 Sri Lanka: State of Human Rights: 2018

ourt took the view that havin subseuently availed herself of 11. Time-bar leal representation the petitioner was epected to comply with rticle of the onstitution stipulates that petitions that allee these rules. ccordinly the petition was dismissed. an infrinement or imminent infrinement of fundamental rihts should be filed within one month. he Sri Lankan Supreme ourt 10. Standing has had a contrastin approach to the interpretation of this liberal approach to standin was affirmed by the ourt in the reuirement. n in two cases that alleed serious violations case of harauriya . ahaeli Authority of Sri ana discussed of fundamental rihts the ourt chose to adopt the more above. ourt made the followin observation in that reard restrictive or literal approach in its interpretation of the one month rule. f no one can aintain an action for redre of a ublic ron or ublic inury it ould be diatrou to the rule of la for it ould n the case of nironental oundation uarantee iited be oen to the State or a ublic authority to act ith iunity beyond onserator eneral of orests aturusinge the ourt upheld a the coe of it oer or in breach of a ublic duty oed by it. he strict interpretation of the one month rule. nvironmental strict rule of standing … is relaxed and a broad rule eoled hich oundation Ltd. an oraniation established to carry out work in ie tandin to any eber of the ublic ho i not a ere buy relation to environmental ustice filed this fundamental rihts body or a eddleoe interloer but ho ha ufficient interet in the petition challenin the issuance of a permit for land use an roceedin. here can be no doubt that the ri of leal action aaint environmental license and other documents related to a mini the State or it aencie by any citien ill induce the State or it hydro power project in the ‘border line’ of the Sinharaa forest. aencie to act ith reater reonibility and care thereby iroin he ourt upheld the obection by the respondents and dismissed the adinitration of utice. the petition on the basis that it was out of time. he documents that were challened had been issued approimately years prior hrouh these observations the ourt affirmed the established to the petition. n dismissin the petition the ourt observed that udicial trend of the Sri Lankan Supreme ourt of reconiin ‘Petitioners being involved in environmental issues has to be petitions made in the public interest even thouh the tet of vigilant as it is the primary concern of the Petitioners’. rticle reconises standin only for the victim or the attorneyatlaw to file fundamental rihts petitions. ven thouh the alleed harm to the petitioners continued the ourt enforced a strict interpretation of the one month rule. y contrast the ourt observed that rticle must be iven a

S Supreme ourt inutes anuary . S. Supreme ourt inutes ay . S Supreme ourt inutes anuary . S. Supreme ourt inutes ay .

130 Judicial Protection Of Fundamental Rights

S Supreme ourt inutes anuary . S. Supreme ourt inutes ay . S Supreme ourt inutes anuary . S. Supreme ourt inutes ay .

131 Sri Lanka: State of Human Rights: 2018

‘generous and purposive construction’ in the case of entral that were continuing The undergraduate had been forced to stop Engineering Consultancy Bureau Engineers’ Association v entral wearing the niqab in continuing her university education Taing ngineering onsultanc ureau in which the Engineer’s these factual realties into account the ourt could have ssociation of the entral Engineering onsultancy ureau overlooed the delay on the part of the petitioner in coming to challenged a decision regarding the allocation of an official ourt f the ourt had chosen to adopt a purposive residence n this case the ourt held that the petitioners had filed interpretation of the one month rule the ourt would have had the petition within a month of the alleged violation but the opportunity to mae a substantive contribution to the nevertheless affirmed that the one month rule must be interpreted development of the urisprudence on environmental ustice in a generous manner religious freedom, and women’s rights.

The petition challenging the banning of the niqab at the 12. Reliance on International Human Rights Law, Moratuwa niversity was declared to be out of time in the case Foreign Judgments of aar niersit of oratua The petition was filed n some of the cases determined in the upreme ourt months after she was refused entry to the niversity with the t relied to some etent on foreign udgments but no reliance was could have been argued on behalf of the petitioner that the placed on international human rights law ecept in one case where banning of the niqab was a continuing violation owever the was referred to ase law from the nited ingdom neither the ourt nor the lawyers acting on behalf of the nited tates of merica and from ndia were referred to in a few petitioner seemed to have considered this aspect of the alleged cases by the ourt in eplaining its interpretation of the violation of fundamental rights onsequently the petition was fundamental right concerned These cases are briefly discussed dismissed below oreign udgments only carry a persuasive value owever reference to such udgments allows the ourt to draw The substantive violations of fundamental rights that were alleged from and be inspired by udicial reasoning in other urisdictions to be violated in these petitions ought to have attracted the attention of the ourt n both instances the violations that were n the case of enis v irector eneral uer eartent complained of were of a continuing nature The issuance of reaasaetensive reference was made to the ndian case of permits in the former case had resulted in construction activities oyaa in holding that arbitrary and unfair actions of administrators comes within the purview of the right to equality

upreme ourt Minutes ebruary The term ‘niqab’ is used to describe a face veil that is worn by Muslim upreme ourt Minutes une women n some cases the niqab does not cover the eyes while in some other E oyaa v tate o ail au an Anoter cases the eyes are covered by some form of netting upreme ourt Minutes ebruary

132 Judicial Protection Of Fundamental Rights

133 Sri Lanka: State of Human Rights: 2018

in ri ana. t is noteworth that the ourt made no effort to r ring insirtin r the rteenth enent t the relate the oyaa ase to the onstitutional urisrudene in ri nstittin in the interrettin the sce the right t ana. he referene was diret. he leading ase of aiel v elity in ri n he rt te r the cse Bron v inistry o Agriculture from the nited ingdom was ited in the Boar o Eucation oea in serving the signiicnce the ensring el ccess t ectin ase of ivaraa v C in holding that disretion ested statute is not asolute and an onl e eerised for the urose he rt recgnie the right t resns r ecisins y lic for whih suh disretion has een ested in a uli authorit. thrities in the cse ayaeera v ernano n iring this he ourt relied etensiel on seeral udgments of the ndian rincile the rt relie n the nin cse ueree v ureme ourt in affirming that inororated omanies that are nion o nia rther thn n the estlishe ri nn effetiel owned and ontrolled the state would e suet to risrence n the right t resnshe resn r relying n the fundamental rights urisdition of the ourt. nin risrence in this instnce is nt cler

n the ase of Banara v ational e an eellery Autority the 13. Compensation ourt referred to the niersal elaration of uman ights. n crisn t the rs censtin n csts in the he etition alleged a iolation of the right to engage in a lawful revis yers the rs e y the ree rt in emloment under rt g of the onstitution. he ourt re signiicntly higher s evient r the tle el in ll seems to ite the to affirm that the right to wor for a cses ecet ne the nts re s ver s living ‘is the very essence of ersonal freedom. he ourt made no further referene to the in this ase. igure Range No of Cases ess thn he ase of e ilva v rincial an Cairan ntervie Boar arasoa iyalaya Aalangoa araraaansa . , ureme ourt inutes ul . ivaraa v C , ureme ourt inutes ul , . Catain Aeygunearena v ri ana orts Autority , r greter ureme ourt inutes anuar . , ureme ourt inutes eemer . , ureme ourt inutes eemer , . ree rt intes nry , ureme ourt inutes ugust .

134 Judicial Protection Of Fundamental Rights in ri ana. t is noteworth that the ourt made no effort to r ring insirtin r the rteenth enent t the relate the oyaa ase to the onstitutional urisrudene in ri nstittin in the interrettin the sce the right t ana. he referene was diret. he leading ase of aiel v elity in ri n he rt te r the cse Bron v inistry o Agriculture from the nited ingdom was ited in the Boar o Eucation oea in serving the signiicnce the ensring el ccess t ectin ase of ivaraa v C in holding that disretion ested statute is not asolute and an onl e eerised for the urose he rt recgnie the right t resns r ecisins y lic for whih suh disretion has een ested in a uli authorit. thrities in the cse ayaeera v ernano n iring this he ourt relied etensiel on seeral udgments of the ndian rincile the rt relie n the nin cse ueree v ureme ourt in affirming that inororated omanies that are nion o nia rther thn n the estlishe ri nn effetiel owned and ontrolled the state would e suet to risrence n the right t resnshe resn r relying n the fundamental rights urisdition of the ourt. nin risrence in this instnce is nt cler

135 Sri Lanka: State of Human Rights: 2018

n eeing ith st rctice in st cses the rt rere the pendin efore the Court y estin the elusie urisdition resnents t y rt the censtin ersnlly s ith reard to undamental ihts to the upreme Court the leal inte t in revis isses the tate o uan igts rerts system affords the hihest possile deree of reonition in the re etile sty the censtin rs hs t e administration of ustie oeer the time la eteen the filin nerten t nerstn its selness s reey r viltins of a petition and the onlusion of proeedins suests that the nentl rights effetieness of the remedy is ein diluted y las delays urther researh should e arried out to identify the fators that 14. The Duration of Proceedings ontriute to the delay ccring t rticle the nstittin the ree Court is required to ‘hear and finally dispose of’ fundamental 15. Conclusion rights etitins ithin t nths ever s evient r the he urisprudene of the Court durin on fundamental tle el st cses see t te t lest t yers hile rihts an e desried as ein relatiely proressie he th cses hve ten t lest yers t e cncle rther reserch restoration of the independene of the udiiary y the hs t e nerten t ientiy the resns r this ely s the mendment to the Constitution in seems to e hain a rt es nt reer t the ely r er n elntin r it t positie impat on the Court espite this the foreoin analysis cl e rge tht the ely in the eterintin points to a fe aps that still persist ne is the method of udiial nentl rights etitins in n itsel cl nt t reasonin he udments ontinue to reeal a preoupation viltin the right t elity ith the determination of fats hereas the Court should e primarily deelopin the interpretation of the fundamental riht igure onerned elated to this is the onern reardin the sparse yers since iling rite r the ttl n referene to udiial precedent and to Sri Lanka’s international etitin etitins gents oliations under human rihts treaties

eport of the peial apporteur on the independene of udes and rever s rerte y the ecil rter n the layers on her mission to ri ana Cdd arh neenence the iciry s the hie stice hisel h ara serve t nentl rights etitins re crrently

136 Judicial Protection Of Fundamental Rights

137

INTERNATIONAL MONITORING OF HUMAN RIGHTS IN SRI LANKA 2017

Dinushika Dissanayake

1. Introduction The year 2018 marks 70 years since the international community agreed to a set of core principles that were to guide the evolution of human rights- the Universal Declaration of Human Rights (UDHR). The UDHR was adopted by the United Nations General Assembly on 10 December 1948, when Sri Lanka as a sovereign nation was less than one year old, having achieved independence from the British on 4 February 1948. Sri Lanka would eventually incorporate only a few of the core rights in the UDHR into the first fundamental rights chapter of the Republican Constitution in 1972. Other rights, especially key economic and social rights,

 Dinushika Dissanayake is presently the Deputy South Asia Director for Research at Amnesty International and previously was the Executive Director of the Law and Society Trust. She was awarded the Chirac Foundation Award for conflict prevention in 2018 and holds an LLB from the University of Colombo, an LLM from New York University and is a lawyer by profession. The views expressed in this chapter are her own and does not necessarily reflect the views of Amnesty International.

INTERNATIONAL MONITORING OF HUMAN RIGHTS IN SRI LANKA 2017

Dinushika Dissanayake

continued to be relegated to directive principles of state policy and abuses have gone unpunished and un-adjudicated,2 and resultant remained non-justiciable. actions and inactions by the state. Some of these laws predate the UDHR and are a part of our colonial heritage, such as archaic The milestone 70th anniversary of the UDHR provides a useful lens provisions in the Penal Code, which criminalize, for example, same with which to approach the international monitoring of the human sex relations and sex work and still retain the death penalty for a rights state in Sri Lanka for the year past. The UDHR did not variety of offenses. Others were very much an organic product of bifurcate human rights along civil and political rights, and Sri Lanka’s political gambles and were enacted shortly after economic, social and cultural rights demarcation. In a sense, the independence such as the Citizenship Act No. 18 of 1948 which approach of the UDHR was to recognize the intersectionality and disenfranchised thousands of Tamils of Indian origin. Sri Lanka interdependence of human rights. The second and third iterations also does not provide for a set of justiciable rights vis-à-vis key of international human rights law encapsulated in the International economic, social and cultural rights guarantees, although Supreme Covenant on Civil and Political Rights (ICCPR) and the Court decisions have interpreted some rights such as the right to International Covenant on Economic, Social and Cultural Rights education as rights that are recognised in the bill of rights although (ICESCR) eventually overtook the interdependency principles that there are no express provisions to give effect to the same.3 the UDHR recognized, and resulted in an emphasis on guarantee of civil and political rights as a precursor for the guarantee of other In this chapter, the international monitoring of human rights in Sri rights.1 The guarantee of civil and political rights further fit well Lanka is addressed by assessing the various engagements Sri Lanka into the governing economic ideology of the times, and the had over 2017 with international bodies and agencies. The chapter tensions caused by the cold war between the major political begins with a short analysis of the international human rights powerhouses of the time. obligations Sri Lanka has taken upon itself since independence, which obligations along with customary international law form the For Sri Lanka, the evolution of its commitment to international benchmark for assessing international human rights law. human rights frameworks has been a janus-faced. Externally, Sri Thereafter the treaty body engagements through the year are Lanka has ratified as many as 16 major human rights treaties and discussed, with Committee on Elimination of All forms of covenants. Internally, however, multiple discriminatory laws and Discrimination against Women, Committee on Economic, Social policies continue to govern the legal framework, and human rights

2 Discriminatory laws have included archaic provisions in the Penal Code, personal laws, and stand-alone laws like the Vagrants Ordinance No. 4 of 1841 which discriminate against women, religious and ethnic minorities and LGBT 1 For example the 1978 Constitution and the 1972 Constitution of Sri Lanka people. do not include several key economic, social and cultural rights as justiciable 3Haputhantrige & Others v. Secretary, Ministry of Education & Others (2007 FR) 10- rights. 13/2007 (Grade One Admission case) (2007) 1 Sri LR 101.

140 International Monitoring of Human Rights in Sri Lanka 2017 continued to be relegated to directive principles of state policy and abuses have gone unpunished and un-adjudicated,2 and resultant remained non-justiciable. actions and inactions by the state. Some of these laws predate the UDHR and are a part of our colonial heritage, such as archaic The milestone 70th anniversary of the UDHR provides a useful lens provisions in the Penal Code, which criminalize, for example, same with which to approach the international monitoring of the human sex relations and sex work and still retain the death penalty for a rights state in Sri Lanka for the year past. The UDHR did not variety of offenses. Others were very much an organic product of bifurcate human rights along civil and political rights, and Sri Lanka’s political gambles and were enacted shortly after economic, social and cultural rights demarcation. In a sense, the independence such as the Citizenship Act No. 18 of 1948 which approach of the UDHR was to recognize the intersectionality and disenfranchised thousands of Tamils of Indian origin. Sri Lanka interdependence of human rights. The second and third iterations also does not provide for a set of justiciable rights vis-à-vis key of international human rights law encapsulated in the International economic, social and cultural rights guarantees, although Supreme Covenant on Civil and Political Rights (ICCPR) and the Court decisions have interpreted some rights such as the right to International Covenant on Economic, Social and Cultural Rights education as rights that are recognised in the bill of rights although (ICESCR) eventually overtook the interdependency principles that there are no express provisions to give effect to the same.3 the UDHR recognized, and resulted in an emphasis on guarantee of civil and political rights as a precursor for the guarantee of other In this chapter, the international monitoring of human rights in Sri rights.1 The guarantee of civil and political rights further fit well Lanka is addressed by assessing the various engagements Sri Lanka into the governing economic ideology of the times, and the had over 2017 with international bodies and agencies. The chapter tensions caused by the cold war between the major political begins with a short analysis of the international human rights powerhouses of the time. obligations Sri Lanka has taken upon itself since independence, which obligations along with customary international law form the For Sri Lanka, the evolution of its commitment to international benchmark for assessing international human rights law. human rights frameworks has been a janus-faced. Externally, Sri Thereafter the treaty body engagements through the year are Lanka has ratified as many as 16 major human rights treaties and discussed, with Committee on Elimination of All forms of covenants. Internally, however, multiple discriminatory laws and Discrimination against Women, Committee on Economic, Social policies continue to govern the legal framework, and human rights

141 Sri Lanka: State of Human Rights: 2018

and ltral ights and niersal eriodic eiew all taking place throgh the ear n each o these the meeting o international hman rights obligations isis preios reiew ccles was  reiewed b the committees ciil societ and national man – ights ommission iews were considered along with state part reports and recommendations were made or Sri Lanka or the  net reporting ccle he chapter ollows a thematic analsis which looks at the treat bod reiew and recommendations on each o – the maor hman rights themes o economic social cltral ciil  – and political rights

 International Treaty Body System he international treat bod sstem monitors the implementation – o international hman rights obligations b state parties ach o the maor hman rights treaties sch as the nternational oenant  on conomic Social and ltral ights monitored b the ommittee on conomic Social and ltral ights the nternational oenant on iil and olitical ights monitored  b the man ights ommittee the onention on limination o ll orms o iscrimination gainst omen monitored b the ommittee on limination o ll orms o iscrimination gainst omen are good eamples

  nternational oenant on conomic Social and ltral ights S adoption entr into orce he nternational oenant on iil and olitical ights adopted  entr into orce he onention on the limination o ll orms o iscrimination against omen – adoption in entr into orce in

142 International Monitoring of Human Rights in Sri Lanka 2017 and ltral ights and niersal eriodic eiew all taking place throgh the ear n each o these the meeting o international hman rights obligations isis preios reiew ccles was  reiewed b the committees ciil societ and national man – ights ommission iews were considered along with state part reports and recommendations were made or Sri Lanka or the  net reporting ccle he chapter ollows a thematic analsis which looks at the treat bod reiew and recommendations on each o – the maor hman rights themes o economic social cltral ciil  – and political rights

143 Sri Lanka: State of Human Rights: 2018

 the state is in iolation of treat od interpretations of the scope of the right.  ach treat od has a reporting ccle for state parties. The uman  ights Committee, for eample has a reporting ccle of four ears. or the Committee on conomic, ocial and Cultural ights, the first report must e sumitted within two ears of acceding to the  treat, and thereafter eer fie ears. tate parties are oliged to  sumit their reports on time. n the eent there is a significant dela, some treat odies lie the uman ights Committee can conduct the reiew een without the state part report. n such  instances the concluding oserations are shared with the state part priatel and ma e made pulic later.  ach of the treat odies proides concluding oserations at the end of each reiew. These concluding oserations are positie recommendations to the state to improe its implementation of treat ased human rights oligations. Concluding oserations , “These include consideration of also acnowledge progress alread made the state part in implementing rights. n its delierations the committee taes into account the reports sumitted not onl the state part, ut also ciil societ and independent human rights odies lie the treaties.” national uman ights Commission.

ne notale point was that Sri Lanka’s engagements were largely also formulate ‘General Comments’ which interpret the meaning positie in , although accepting recommendations from these treat od reiews were often mied with refusal to engage on some core human rights issues such as aolition of the death penalt. n the other hand, significant promises were made such as to repeal the reention of Terrorism ct. The chapter

concludes with an oeriew of what these promises mean, the

144 International Monitoring of Human Rights in Sri Lanka 2017

concludes with an oeriew of what these promises mean, the

145 Sri Lanka: State of Human Rights: 2018

imrtane mnitring the imlementatin these ligatins aainst ote an the e nhan o eain er the net rerting yles an the rle iil siety an eatent o nishent that econie the coetence o the ineenent ies t hl gernment t the rmises they hae oittee aainst ote to eceie iniia mae internatinally conications

International charter-based bodies n the ast thee eas aone i Lanka sine the onention on he manate harterase ies arises rm the harter the ihts o esons ith isaiities an the tiona otoco an nt rm seii treaties he man ights nil is a theeto the ntenationa onention o the otection o harterase y st as its reeessr the nite atins esons o noce isaeaance an the ntenationa mmissin n man ights was als a harterase y he Lao aniation oent oic onention o ssiiary ies ner the man ights nil inle the a in an the otoco to eent ess an nish niersal erii eiew rking r whih was estalishe aickin in esons secia oen an hien in ner a eneral assemly resltin in an the man ights nil isry mmittee estalishe in y a oee i Lanka is not a sinato to the econ tiona man ights nil resltin otoco to the he econ tiona otoco eits iniia conications to the teat o iect theeoe Seial reres als all within the resnsiility the man this otion is sti not aaiae o eoe ho hae ehaste ights nil Seial reres inle Seial arters oestic eeies in i Lanka an hae sti not een aantee rking rs an neenent erts hese seial a ien iht ne the intenationa coenant he oittee on reres lay a key rle in inestigating mnitring an conoic ocia an ta ihts heeinate rerting n seii hman rights isses whih l e ase n ecoene in that i Lanka ati the econ tiona either a ntry manate r a themati manate otoco an this as accete i Lanka at the niesa eioic eie ate in hen i Lanka sote the 2. Sri Lanka’s History of Commitments to International ecoenation a to ati the sae Human Rights Frameworks in Recent Years s nte Sri Lanka has ratiie mar hman rights i Lanka aso accete ecoenations o the oittee nentins n emer the ainet are Sri to ati the tiona otoco to the onention aainst Lanka’s accession to the tinal rtl t the nentin

mentatin httsresearhnrgenshmanrightsharter mentatin httsresearhnrgenshmanrightsharter aa

146 International Monitoring of Human Rights in Sri Lanka 2017 imrtane mnitring the imlementatin these ligatins aainst ote an the e nhan o eain er the net rerting yles an the rle iil siety an eatent o nishent that econie the coetence o the ineenent ies t hl gernment t the rmises they hae oittee aainst ote to eceie iniia mae internatinally conications

mentatin httsresearhnrgenshmanrightsharter mentatin httsresearhnrgenshmanrightsharter aa

147 Sri Lanka: State of Human Rights: 2018

ote an the e nhan o eain eatent o ourt the fieuge benh le by hief ustie Sarath Sila nishent an to ieent the sae on atiication etermine that the uman ights ommittee ha no urisition heeoe accetin intenationa han ihts oiations has an that all international obligations ommitte to internationally been part of Sri Lanka’s strategy in terms of external relations; the by Sri Lanka ha to be passe by the legislature as omesti la in chaene has een to aantee these han ihts oiations orer to be appliable omestially he appeal as ismisse oestica o eae athoh i Lanka accete ecoenations o seea state aties incin oan n her report on the inepenene of the uiiary in Sri a enea e eaan an enak at the to ati Lanka the Speial apporteur on nepenene of uges an the otiona otoco to the otine se o tote in csto Layers onia into ommente as follos in i Lanka has aso een hihihte in intenationa teat o eies in oittee aainst ote sote “This extreme form of legal dualism is not sustainable, as it is well sissions the an ihts oission o i Lanka accepted in international law that a State party to a treaty may not invoke provisions of its domestic legislation as a justification for its a si isai ns failure to meet its treaty obligations.”15 seent to the ecision in Singarasa v. AG,12 the aist nate of Sri Lanka’s legal system requires that all international obligations he interpretation by the Supreme ourt of the ualist nature of e enacte ia oca eisation in oe o the a to e Sri Lanka’s legal system in Singarasa has been the subet of ieente oestica n that case a an ho ha een ritique the impat of that eision has been that all international conicte ase on a oce conession coaine to the an human rights an other treaty obligations of Sri Lanka oul ihts oittee his as ate the ee ot isisse his nee to be passe ia omesti legislation in orer to be eeme aication o secia eae to aea aainst the coniction he ustiiable rights n this ontext seeral key las ere passe an ihts oittee ecoene that the ecision e uring the year an a goo example is the ight to nformation eiee hen the etitione then aeae to the ee t hih beame operatie on ebruary his as a har

oncin oseations aa L oittee on conoic ocia an ta ihts oncin oseations Singarasa v. the Attorney General, Sri L on the ith eioic eot o i Lanka st hese eport of the Speial apporteur on the inepenene of uges an layers ecoenations ee eeate at the at aa on her mission to Sri Lanka uman ights ounil une i L at para See for example the exellent analysis of the ugment by Nallaratnam Singarasa v. Sri Lanka, Communication o oonesekere a ounsel in the ase publishe in the The Island oc httpislanlkinexphppageatartileetailspageartile htthianenocshtht etailsoetitle

148 International Monitoring of Human Rights in Sri Lanka 2017

149 Sri Lanka: State of Human Rights: 2018

n gain tat as reslte in greater antaility an he ffie of issing ersons t o. of as assed in 01, transareny in gernment and the only develoment in the year 01 as the making of budget allocations for the oerationalizing of the office, and the On the other hand, Sri Lanka’s Constitution still fails to recognize calling for nominations to fill the ositions of Commissioners enmi sial an ltral rigts as stiiale rigts ile ter ntries ae a similar allenges iial interretatin At the PR in ovember 01, Sri Lanka acceted r nstittinal rerm ae inrrate enmi sial an recommendations by state arties including ontenegro, eal, ltral rigts int te ill rigts r eamle in nia iial amibia and etherlands, to continue the Constitutional reform interretatin r in eal ne nstittin e iretie rocess including recommendations to reformulate the bill of riniles state liy in te nstittin Sri Lanka es rights1 he CEA revie earlier in the year hoever raised reer t tese rigts t it is nly trg iial interretatin concerns on the extent of women’s participation in the reform tat tese rigts ae eme stiiale ltg Sri Lanka rocess0 he OHCHR also commended the Constitutional egan a nstittinal rerm ress in it islanie reform rocess at the Human Rights Council sessions in ebruary nsltatins te ress grn t a alt in te last arter 011 Since then, the rogress has halted and the ossibility of e remmenatins tat emanate rm te ntryie Constitutional reform aears distant at the time of riting in li nsltatins in inle lear remmenatins t 01 he cause aears to be a combination of issues from lack inle enmi sial an ltral rigts in te nstittin of olitical ill, instability of the coalition government, and e gernment rerte t te niersal erii eie in disagreement on critical reform agendas such as the nature of the emer tat nsltatins n nstittinal rerm ere state federal or unitary, for eamle nging eer genine litial ill t amen key setins te nstittin as amigs esite early gains it te he Constitutional reform rocess as rogressing sloly in the assing te t menment t te nstittin in year 01 he interim reort of the Steering Committee on Constitutional Reform aointed by the Constitutional Assembly Sri Lanka als rerte t te tat te ie issing ersns l eme eratinal in Setemer t te htts//undocsorg/E/A/HRC/RES/30/1 his is a key resolution before ie l eentally nly eme eratinal in is as the Human Rights Council, cosonsored by Sri Lanka, here the government signiiantly te irst te transitinal stie meanisms tat of Sri Lanka agreed to undertake key stes to guarantee transitional ustice and accountability hese included addressing needs of accountability, truth, ustice l e set y te gernment st esltin and rearations and secific legislative measures like reealing the draconian Prevention of errorism Act at ara 1 PR, 11 at ara 1113 Human Rights Council, ‘Promoting reconciliation, accountability and human 0 CEA, 3 at ara 10 and 11a rights in Sri Lanka’, A/HRC/RES/30/1, available at 1 OHCHR, 1 at ara

150 International Monitoring of Human Rights in Sri Lanka 2017

151 Sri Lanka: State of Human Rights: 2018

in pri was pishe on eptemer he n a the was reaccreite the steerin committee report was schee to hae een isse in committee on ccreitation of the oa iance of ationa anar of the same ear t was eae oer nine months man ihts nstittions as an ‘’ rae instittion a cear he interim report was eate the onstittiona ssem in inication of its reia as an inepenent an creie hman ctoer an oemer in hearins that were roacast ia rihts instittion in ri ana he committee is estaishe ospeaers otsie of ariament an on nationa teeision t ner the nternationa oorinatin ommittee for ationa thereafter there has een no pic information on frther man ihts nstittions which was estaishe in t is an proress on constittiona reform association of nationa hman rihts instittions s from aron the wor is incorporate in witeran t promotes Treaty body scrutiny of Sri Lanka’s human rights record s to e in accorance with the aris rincipes an promotes hree maor treat oies reiewe ri ana in isis its protection of hman rihts responsiiit to respect protect an ffi its internationa hman rihts oiations mae recommenations that hae a enera rin the ear the was one of the few instittions that appication ne of these important steps is in reation to action to maintaine their ear promise of inepenence an commitment e taen to frther empower the man ihts ommission of to hman rihts thoh the nna eport of the has ri ana he ommittee on conomic ocia an not een aaiae for persa at the time of writin in ctoer tra ihts for exampe stron re the oernment of ri the eeation of the to an ‘’ rae instittion is ana to amen the onstittion to mae the man ihts eience of its improe fnctionin as an inepenent hman ommission an inepenent o estaishe ner the rihts oersiht o onstittion with a wier manate that inces economic socia an ctra rihts t aso re the oernment to aocate he aso re the oernment to ensre the sfficient resorces to the ommission n the niersa erioic inepenence of the iciar in ine with the recommenations eiew in oemer ri ana accepte a recommenation of the pecia apporter on the nepenence of es an the hiippines to ensre aeate fnin an hman awers he inepenence of the iciar has een one of the resorces for the man ihts ommission of ri ana thorniest isses for ri ana to tace espite a icia sstem that ates ac to oer a centr n the pecia apporter httpsenishconstittionaassemsteerincommittee httpsenishconstittionaassemimaespfinterim reporteportpf eport of the orin rop on the niersa erioic eiew man oncin serations on the fifth perioic report of ri ana th ihts onci th ession ecemer p at para st ommittee on conomic ocia an tra ihts aaiae at “A brief history of GANHRI,” httpstinternetohchroraotstreatoexternaownoaaspxs httpsnhriohchrorotsaesistoraspx monoann at p para

152 International Monitoring of Human Rights in Sri Lanka 2017 in pri was pishe on eptemer he n a the was reaccreite the steerin committee report was schee to hae een isse in committee on ccreitation of the oa iance of ationa anar of the same ear t was eae oer nine months man ihts nstittions as an ‘’ rae instittion a cear he interim report was eate the onstittiona ssem in inication of its reia as an inepenent an creie hman ctoer an oemer in hearins that were roacast ia rihts instittion in ri ana he committee is estaishe ospeaers otsie of ariament an on nationa teeision t ner the nternationa oorinatin ommittee for ationa thereafter there has een no pic information on frther man ihts nstittions which was estaishe in t is an proress on constittiona reform association of nationa hman rihts instittions s from aron the wor is incorporate in witeran t promotes Treaty body scrutiny of Sri Lanka’s human rights record s to e in accorance with the aris rincipes an promotes hree maor treat oies reiewe ri ana in isis its protection of hman rihts responsiiit to respect protect an ffi its internationa hman rihts oiations mae recommenations that hae a enera rin the ear the was one of the few instittions that appication ne of these important steps is in reation to action to maintaine their ear promise of inepenence an commitment e taen to frther empower the man ihts ommission of to hman rihts thoh the nna eport of the has ri ana he ommittee on conomic ocia an not een aaiae for persa at the time of writin in ctoer tra ihts for exampe stron re the oernment of ri the eeation of the to an ‘’ rae instittion is ana to amen the onstittion to mae the man ihts eience of its improe fnctionin as an inepenent hman ommission an inepenent o estaishe ner the rihts oersiht o onstittion with a wier manate that inces economic socia an ctra rihts t aso re the oernment to aocate he aso re the oernment to ensre the sfficient resorces to the ommission n the niersa erioic inepenence of the iciar in ine with the recommenations eiew in oemer ri ana accepte a recommenation of the pecia apporter on the nepenence of es an the hiippines to ensre aeate fnin an hman awers he inepenence of the iciar has een one of the resorces for the man ihts ommission of ri ana thorniest isses for ri ana to tace espite a icia sstem that ates ac to oer a centr n the pecia apporter httpsenishconstittionaassemsteerincommittee httpsenishconstittionaassemimaespfinterim reporteportpf eport of the orin rop on the niersa erioic eiew man oncin serations on the fifth perioic report of ri ana th ihts onci th ession ecemer p at para st ommittee on conomic ocia an tra ihts aaiae at “A brief history of GANHRI,” httpstinternetohchroraotstreatoexternaownoaaspxs httpsnhriohchrorotsaesistoraspx monoann at p para

153 Sri Lanka: State of Human Rights: 2018

oi ito isse her reort fter isiti ri i he esonding to nternationa Treaty odies in reort oite to seer fs i the rtee of stie i the In the context of Sri Lanka’s struggle to weave human rights values otry Ao the seer osios of the Rorter is the into its laws and policies there were three maor human rights eei tre of resiste to h rihts ithi the ii treat od reviews that Sri Lanka was suected to in . In setor “A significant change in the attitude and sensitivity of many addition to this Sri Lanka was also considered at the uman ebers of the e rofessios, i rtir the iiry, ights ouncil sessions in and was given more time to towards reforms and human rights will be necessary.” complete its oligations to guarantee transitional ustice under esolution that it committed to in . The Special Rapporteur noted that “Many credible concerns reti to the ieeee, irtiity oetee of the he three international human rights odies were the ommittee judiciary” were reported to her during her visit. esite on limination of ll forms of iscrimination gainst omen iroeets i the ieeee of soe es fter , the () on arch the ommittee on conomic Social Rorter oets o the strtr isses tht otribte to and ultural ights (S) in une and the niversal iterferee i the iiry, i sei etio of the offer eriodic eview orking roup () in ovemer . his of oeret ositios ioti ostis to es fter chapter will traverse the recommendations of the treat odies and retireet, hih e to ofits of iterest he oe will attempt to draw connections etween the failures and tht ii ieeee sees to he eroe oer the ees, successes of the State in guaranteeing the full gamut of rights to its ei oe to oe tht the isses re systeie ise people rights which are intersectional and interdependent. rther th seifi isses rete to seifi ebers of the otal the ommittee on the limination of iscrimination iiry he rises oers o oitets, rootios, against omen () in its review of Sri Lanka noted that trsfers seetio of es, the y i hih the domestic laws (and policies) of Sri Lanka do not ‘address ieeee of the es y be oroise t eh of these intersectional discrimination.’ stes conomic rights he connection etween economic rights and the guarantee of civil and political rights is illustrated in man human rights violations around the world. hose who are economicall marginalised are

Reort of the ei Rorter o the eeee of es more vulnerale to all manner of human rights auses and yers o her issio to ri , H Rihts oi, e , AHRA Reort of the ei Rorter o the Ieeee of es yers ommittee on limination of ll forms of iscrimination gainst omen o her issio to ri , id.t r L arch p. at para (c).

154 International Monitoring of Human Rights in Sri Lanka 2017

155 Sri Lanka: State of Human Rights: 2018

discrimination. his is clear in the propensit of economicall on ess tan 22 rupees per person per a, utiiensiona marginalised persons to e tortured for example. povert easures cassif an aitiona 1 iion peope as poor”. ese pockets of povert of course contribute to risin In this context oth the review and the S review ineuait an vioation of oter uan rits Accorin to te of Sri Lanka raise significant concerns visvis Sri Lanka’s Centra ank of Sri Lanka, povert eacount ine as a guarantee of economic rights to its people. percentae for Sri Lanka in 201 was 41, copare to 7 in 20121 owever, te overa fiures ie istrict eve n important recommendation the S was on the fiscal ineuaities, wit te Eastern rovince avin a povert eacount revenue of the State and its oligation to demonstrate ustifications ine as i as 7 an te ortern rovince as i as 77 for cuts in spending on health and education. Sri Lanka reduced for te ear 201 spending on oth of these important areas of pulic services in . he ommittee pointed out that Sri Lanka must n aition, te rit to ousin as aso been coproise wit demonstrate that an cuts due to exetional irumstanes of eonomi rear to urban popuations in Sri Lanka Since 2010, as an as hardshi are temporar nondiscriminator proportional and do ,00 faiies ave been evicte b te rban Reeneration not affect disadvantaged and marginalied persons and groups. rora of te rban eveopent Autorit of Sri Lanka wic te CESCR note was witout ue process, copensation an Sri Lanka egan to reduce the total numer of amurdhi social invovin te iitar7 e CESCR recoene tat a securit allowance recipients annuall from . or a eisative process be put in pace, an tat copensation, ea countr which alread has low social securit availailit and an protection an reress be uarantee alread flawed structure in the amurdhi this is a doul prolematic polic decision. he S for example noted that e CEA review aso reveae te specific issues face b a large proportion of the population lives on less than S. per feae eae ouseos ranin fro ebt epenenc da. ccording to the oint civil societ report sumitted to the CESCR review of 2017, “About 40 percent of the population lives “The State of Economic, Social and Cultural Rights in Sri Lanka: A oint Civi Societ Saow Report to te nite ations Coittee on Economic Social and Cultural Rights”, April 2017, p. 5, para 9, he ritical riminolog ompanion ed. halia nthon hris unneen ttpstbinternetocrorreatiesCESCRSare20ocuentsLA (awkins ress ew South ales ustralia) at p. . CESCRCSSLA2722Epf ommittee on limination of ll forms of iscrimination gainst omen Centra ank of Sri Lanka, L arch p. para ttpswwwcbsovksitesefautfiescbswebocuentsstatisticsot ommittee on limination of ll forms of iscrimination gainst omen erpubeconoicansociastatisticsofSL201e0pf, p 14 L arch p. para 7 Coittee on Eiination of A fors of iscriination Aainst oen, ommittee on limination of ll forms of iscrimination gainst omen CEACLA, arc 2017, p 7, at para 47 L arch p. para CESCR, p7, para 4

156 International Monitoring of Human Rights in Sri Lanka 2017 discrimination. his is clear in the propensit of economicall on ess tan 22 rupees per person per a, utiiensiona marginalised persons to e tortured for example. povert easures cassif an aitiona 1 iion peope as poor”. ese pockets of povert of course contribute to risin In this context oth the review and the S review ineuait an vioation of oter uan rits Accorin to te of Sri Lanka raise significant concerns visvis Sri Lanka’s Centra ank of Sri Lanka, povert eacount ine as a guarantee of economic rights to its people. percentae for Sri Lanka in 201 was 41, copare to 7 in 20121 owever, te overa fiures ie istrict eve n important recommendation the S was on the fiscal ineuaities, wit te Eastern rovince avin a povert eacount revenue of the State and its oligation to demonstrate ustifications ine as i as 7 an te ortern rovince as i as 77 for cuts in spending on health and education. Sri Lanka reduced for te ear 201 spending on oth of these important areas of pulic services in . he ommittee pointed out that Sri Lanka must n aition, te rit to ousin as aso been coproise wit demonstrate that an cuts due to exetional irumstanes of eonomi rear to urban popuations in Sri Lanka Since 2010, as an as hardshi are temporar nondiscriminator proportional and do ,00 faiies ave been evicte b te rban Reeneration not affect disadvantaged and marginalied persons and groups. rora of te rban eveopent Autorit of Sri Lanka wic te CESCR note was witout ue process, copensation an Sri Lanka egan to reduce the total numer of amurdhi social invovin te iitar7 e CESCR recoene tat a securit allowance recipients annuall from . or a eisative process be put in pace, an tat copensation, ea countr which alread has low social securit availailit and an protection an reress be uarantee alread flawed structure in the amurdhi this is a doul prolematic polic decision. he S for example noted that e CEA review aso reveae te specific issues face b a large proportion of the population lives on less than S. per feae eae ouseos ranin fro ebt epenenc da. ccording to the oint civil societ report sumitted to the CESCR review of 2017, “About 40 percent of the population lives “The State of Economic, Social and Cultural Rights in Sri Lanka: A oint Civi Societ Saow Report to te nite ations Coittee on Economic Social and Cultural Rights”, April 2017, p. 5, para 9, he ritical riminolog ompanion ed. halia nthon hris unneen ttpstbinternetocrorreatiesCESCRSare20ocuentsLA (awkins ress ew South ales ustralia) at p. . CESCRCSSLA2722Epf ommittee on limination of ll forms of iscrimination gainst omen Centra ank of Sri Lanka, L arch p. para ttpswwwcbsovksitesefautfiescbswebocuentsstatisticsot ommittee on limination of ll forms of iscrimination gainst omen erpubeconoicansociastatisticsofSL201e0pf, p 14 L arch p. para 7 Coittee on Eiination of A fors of iscriination Aainst oen, ommittee on limination of ll forms of iscrimination gainst omen CEACLA, arc 2017, p 7, at para 47 L arch p. para CESCR, p7, para 4

157 Sri Lanka: State of Human Rights: 2018

eacerated finance companies that hae flooded fragile the orth and East and its conseuences on lielihood as ell as economies in the orth and East, to the demand of seual rier use of fresh ater ells in priate lands under the control of the for grant of elfare serices and enefits.9 t is clear from the militar and its conseuences on ater securit for the people in recommendations of oth these treat odies that Sri Lanka must that area are oth noted the CESCR. The militar also controls urgentl take measures to address elfare and social securit fishing actiities in parts of the countr hich impacts the enefits, particularl those of marginalied groups like female lielihood of the fisheries sector. e recommendations of the headed households. CESCR ith regard to militariation ere that a militar inolement in commercial and ciilian actiities e ended, the efore the R in oemer 2017, Sri Lanka uneiled plans to lands held the militar e mapped, c an independent national tackle poert.0 The ear 2017 as declared the ear of alleiating land commission e estalished, d a national land polic e poert. Actions outlined the goernment included a poert deeloped, and e priate and pulic lands that are eing held alleiation program called ramashathi and the drafting of a the militar e released.2 ational Sustainale eelopment ision 200. espite these assurances, pulic spending on essential economic and social rights The CESCR noted that 2,000 nternall isplaced ersons like health and education ere regressie in 2017, ith the CESCR s are et to e resettled for arious reasons including the fact asking the goernment of Sri Lanka to increase spending on pulic that the militar are occuping priate land. Thirt to camps for proisioning for these sectors.1 The policies of goernment, internall displaced persons eisted at the time of the CEA therefore, appear at odds 2017 had een declared a ear in hich reie in eruar 2017. The languished in Camps, and alleiating poert is the goal, ut other polic leel decisions their return remains an urgent issue to e addressed the contriuted to increasing det dependenc of the poorest goernment so man ears after the end of the armed conflict.5 populations and increasing the cost of liing for the general population through austerit measures hich target the poor Sri Lanka sumitted efore the niersal eriodic Reie in indiscriminatel. oemer 2017 that the Cainet of inisters had approed a ational olic on urale Solutions for ConflictAffected The militariation of commercial and ciilian actiities in Sri Lanka is et to end although the armed conflict came to a rutal end in a 2009. The militar occupation of priate and pulic land in 2 CESCR, p.7, para 950 CESCR, p.7, para 5152 CEA, p. 1 at paras 2 9 CEA, p. 12 at para 5 As of 1 ecemer 2017, there ere still 2,000 s due to the conflict, 0 R, p. , para . and a further 15,000 displaced during the ear due to disasters. nternal 1 Committee on Elimination of All forms of iscrimination Against omen, isplacement onitoring Centre, aailale at http:.internal CEACLA, arch 2017, p. , para 5 displacement.orgcountriessrilanka

158 International Monitoring of Human Rights in Sri Lanka 2017 eacerated finance companies that hae flooded fragile the orth and East and its conseuences on lielihood as ell as economies in the orth and East, to the demand of seual rier use of fresh ater ells in priate lands under the control of the for grant of elfare serices and enefits.9 t is clear from the militar and its conseuences on ater securit for the people in recommendations of oth these treat odies that Sri Lanka must that area are oth noted the CESCR. The militar also controls urgentl take measures to address elfare and social securit fishing actiities in parts of the countr hich impacts the enefits, particularl those of marginalied groups like female lielihood of the fisheries sector. e recommendations of the headed households. CESCR ith regard to militariation ere that a militar inolement in commercial and ciilian actiities e ended, the efore the R in oemer 2017, Sri Lanka uneiled plans to lands held the militar e mapped, c an independent national tackle poert.0 The ear 2017 as declared the ear of alleiating land commission e estalished, d a national land polic e poert. Actions outlined the goernment included a poert deeloped, and e priate and pulic lands that are eing held alleiation program called ramashathi and the drafting of a the militar e released.2 ational Sustainale eelopment ision 200. espite these assurances, pulic spending on essential economic and social rights The CESCR noted that 2,000 nternall isplaced ersons like health and education ere regressie in 2017, ith the CESCR s are et to e resettled for arious reasons including the fact asking the goernment of Sri Lanka to increase spending on pulic that the militar are occuping priate land. Thirt to camps for proisioning for these sectors.1 The policies of goernment, internall displaced persons eisted at the time of the CEA therefore, appear at odds 2017 had een declared a ear in hich reie in eruar 2017. The languished in Camps, and alleiating poert is the goal, ut other polic leel decisions their return remains an urgent issue to e addressed the contriuted to increasing det dependenc of the poorest goernment so man ears after the end of the armed conflict.5 populations and increasing the cost of liing for the general population through austerit measures hich target the poor Sri Lanka sumitted efore the niersal eriodic Reie in indiscriminatel. oemer 2017 that the Cainet of inisters had approed a ational olic on urale Solutions for ConflictAffected The militariation of commercial and ciilian actiities in Sri Lanka is et to end although the armed conflict came to a rutal end in a 2009. The militar occupation of priate and pulic land in 2 CESCR, p.7, para 950 CESCR, p.7, para 5152 CEA, p. 1 at paras 2 9 CEA, p. 12 at para 5 As of 1 ecemer 2017, there ere still 2,000 s due to the conflict, 0 R, p. , para . and a further 15,000 displaced during the ear due to disasters. nternal 1 Committee on Elimination of All forms of iscrimination Against omen, isplacement onitoring Centre, aailale at http:.internal CEACLA, arch 2017, p. , para 5 displacement.orgcountriessrilanka

159 Sri Lanka: State of Human Rights: 2018

isplacement in 201. The fact that such a large numer of s noted, the right to health is not recognised as a fundaental people remained in camps indicates the inefficienc or non right in Sri Lanka oweer, creatie udicial interpretation has led implementation of the said ational olic. to the recognition of the right to health in the contet of the right to e free fro torture, in aneewa, ttorneyataw on behalf of Despite Sri Lanka’s high social indicators, it has one of the world’s erald erin erera . uraweera, ffier in harge, olie tation, highest asting prealence, ranking 12 out of 10 countries.7 attala and others Despite such recognition, the state has et to Climate unpreparedness is also eident ith droughts in 201 and take positie steps to include the right to health as a fundaental earl 2017 and floods later on in the ear oth affecting food right in the onstitution it reains to e seen whether the draft securit in Sri Lanka. The impact of these factors makes the constitution would include the epress right to health as a situation of marginalied and ulnerale groups doul precarious usticiale right in accessing food, ater, sanitation, housing and other serices such as healthcare and education. The are, therefore, at a greater reention of Terrorism ct risk of human rights iolations. he reention of Terrorism t in Sri Lanka is a notorious piece of legislation that has een used since its proulgation to ight to heath repress people t the reiew, Sri Lanka pledged oluntaril The reducing ependiture on health serices Sri Lanka as also to reiew and repeal the law, and while it oinousl entioned noted the CESCR. The regional disparities in access to health replacing it with a new counter terroris law, it did pledge that serices and the affordailit of pulic health care including hidden such law will e copliant with international huan rights law costs that are orne the patient ere concerns noted the CESCR. espite the acute need for mental health proisions, the ne of the recoendations of the onsultatie ask orce on CESCR concluded that such serices are “inadequate and econciliation was that the e repealed and those held insufficientl aailale and accessile.” The high use of in ters of that ct e released his was also reported the agrochemicals in Sri Lanka is also a grae cause for concern. The in its report at the eruar sessions of the uan CESCR recommended that Sri Lanka take steps to address these ights ouncil hat is ost trouling is that arrests under this concerns and ensure it is progressiel realiing the rights it has flawed law continued in and structural issues such as the agreed to fulfil under the CESCR.9 places in which the special igh ourts set up to tr cases under this law are predoinantl Sinhalaspeaking, which sets up

R, p. at para 1 7 CESCR, p., para 555 Sri L CESCR, p., para 570 , p , para oluntar pledges and coitents 9 CESCR, p. 9, para 2 , p at para

160 International Monitoring of Human Rights in Sri Lanka 2017

R, p. at para 1 7 CESCR, p., para 555 Sri L CESCR, p., para 570 , p , para oluntar pledges and coitents 9 CESCR, p. 9, para 2 , p at para

161 Sri Lanka: State of Human Rights: 2018

language arriers to ail lawers wishing to defend clients an greater challenges in accessing even primar education with ust of who are of ail origin 4. enrolled in primar education.

ight to education The right to education, like man other economic and social rights Sri Lanka oasts near uniersal enrolent of children in priar are not usticiale in Sri Lanka as eplained previousl. Although a education and the age of copulsor education has increased fro numer of fundamental rights petitions are filed annuall in the to However, intersectional discrimination affects children’s Supreme Court on admission of children to government schools, access to education in Sri Lanka or eaple, the D notes these petitions usuall ase their claims on right to eualit andor the low leels of school enrolent for specific arginalised groups nondiscrimination. Thus, in the asence of epress protection of such as lowincoe groups, children of igrant workers, in areas these rights, the possiilit of further erosions of the right to where schools are located close to fisheries and plantations and in education is a cause for concern. the orth and ast of the countr ccording to the oint ciil societ report to the S in pril , reasons include ondiscrimination inequalities in school infrastructure in rural areas, lack of trained Sri Lanka’s failure to amend its bill of rights continued to hold back teachers, lack of transport to schoolsdifficulties in reaching its oligation to guarantee nondiscrimination to groups of schools, choice of suects, hidden costs of education aong other marginalised people. Although the Constitution guarantees the issues, all contriute to higher dropout rates fro schools despite right to eualit, it does not etend to people with disailities, and free education in Sri Lanka for all including the tertiar leel on grounds of seual orientation or gender identit. This means that although Sri Lanka signed the Convention on the Rights of Siilar to health, goernent reduced spending on pulic ersons with isailities and the ptional rotocol in 201, its ill education in which is reealed in regional disparities on access of rights is et to epressl guarantee the rights therein. to education and hidden costs like donations for adissions to schools hese additional costs ean that access to qualit The Sri Lankan government noted efore the R in ovemer education reained a challenge hildren with disailities face 2017 that it had prepared draft legislation to give effect to the Convention on the Rights of ersons with isailities.7 t also

, p at para made a voluntar commitment to incorporate the provisions of the D, p at para Covenant into domestic law. However, the law is et to e passed D, p , at paras “The State of Economic, Social and Cultural Rights in Sri Lanka: at the time of writing. n the other hand, the government did oint iil Societ Shadow eport to the nited ations oittee on pledge efore the R that several other steps such as drafting a Economic Social and Cultural Rights”, April 2017, pp. 49, httpstinternetohchrorgreatiesSSharedDocuentsL SSSLpdf 7R, p. at para .

162 International Monitoring of Human Rights in Sri Lanka 2017 language arriers to ail lawers wishing to defend clients an greater challenges in accessing even primar education with ust of who are of ail origin 4. enrolled in primar education.

163 Sri Lanka: State of Human Rights: 2018

bill on sign language sensitiing ublic officers giing effect to the Certificate Examination advanced level, and the estate sector has emloment uota for ersons ith disabilities in the ublic a national poverty headcount of percent As many as of sector ere under a Sri Lanka had also allocated funds to build the community live in line rooms, which are small, vulnerable to houses for omen ith disabilities in the orth and ast threat of fire or natural disasters, owned by the estate and not by the household, and are cramped and unsanitary. The state of their One of Sri Lanka’s obligations under Article 2 of the S is lives illustrate a denial of their rights to housing, to water, to take “all appropriate means, including particularly the adoption sanitation, and ultimately, dignity. The Committee urged the of legislative measures” towards the full realization of the rights government to guarantee these rights to the malaiyaha maal with the hae committed to he failure to undertake legislatie specific mention of the above economic rights. amendments is a clear iolation of the commitment to demonstrate The discrimination based on sexual orientation and gender identity that the measures taken are aroriate to resect rotect and was also highlighted by the CESCR.2 Ranging from the fulfil these rights. The Committee’s recommendations extended to discriminatory laws such as sections 3 of the enal ode,3 to including colour national and ethnic origin disabilit seual violations of access to healthcare, housing, work and education, orientation and gender identit as grounds of nondiscrimination the government of Sri Lanka has failed to guarantee non in rticle of the onstitution discrimination to LGT people. owever, Sri Lanka made a startling argument before the UPR in November 2 that Article he intersectionalit of discrimination as also eident in the 2 of the Constitution which guarantees the right to euality and observations of the CESCR, in relation to “Upcountry nondiscrimination “implicitly included nondiscrimination on the community” or malaiyaha maal ho are historicall denied grounds of sexual orientation.” This is despite the fact that same access to dignified orking conditions access to adeuate ater sex relations are criminalized in terms of the Penal Code. housing nutrition and ualit health care he malaiyaha maal are some of the most marginalised eole in Sri Lanka affected b The right to work for women and persons with disabilities was also the itienshi t o. of the citienshi uestion of the an area of concern for the CESCR. t pointed out that, for malaiyaha maal ere being resoled as recentl as ccording to the oint iil Societ Shado reort submitted to The State of Economic, Social and Cultural Rights in Sri Lanka: the S onl of this communit hae assed the eneral A oint Civil Society Shadow Report to the United Nations Committee on Economic Social and Cultural Rights”, April 2017, pp. 112, https:tbinternet.ohchr.orgTreatiesCESCRShared2ocumentsLA CESCR General Comment No. 3: The Nature of States Parties’ Obligations NTCESCRCSSLA222E.pdf rt ara of the oenant ecember aailable at 2 CESCR, p.3 at para httreforldorgdfidedf at aras and 3 ith a side note “Unnatural Offenses”, section 365 criminalizes same sex S at ara relations. itienshi mendment t o of UPR, p. at para 2

164 International Monitoring of Human Rights in Sri Lanka 2017 bill on sign language sensitiing ublic officers giing effect to the Certificate Examination advanced level, and the estate sector has emloment uota for ersons ith disabilities in the ublic a national poverty headcount of percent As many as of sector ere under a Sri Lanka had also allocated funds to build the community live in line rooms, which are small, vulnerable to houses for omen ith disabilities in the orth and ast threat of fire or natural disasters, owned by the estate and not by the household, and are cramped and unsanitary. The state of their One of Sri Lanka’s obligations under Article 2 of the S is lives illustrate a denial of their rights to housing, to water, to take “all appropriate means, including particularly the adoption sanitation, and ultimately, dignity. The Committee urged the of legislative measures” towards the full realization of the rights government to guarantee these rights to the malaiyaha maal with the hae committed to he failure to undertake legislatie specific mention of the above economic rights. amendments is a clear iolation of the commitment to demonstrate The discrimination based on sexual orientation and gender identity that the measures taken are aroriate to resect rotect and was also highlighted by the CESCR.2 Ranging from the fulfil these rights. The Committee’s recommendations extended to discriminatory laws such as sections 3 of the enal ode,3 to including colour national and ethnic origin disabilit seual violations of access to healthcare, housing, work and education, orientation and gender identit as grounds of nondiscrimination the government of Sri Lanka has failed to guarantee non in rticle of the onstitution discrimination to LGT people. owever, Sri Lanka made a startling argument before the UPR in November 2 that Article he intersectionalit of discrimination as also eident in the 2 of the Constitution which guarantees the right to euality and observations of the CESCR, in relation to “Upcountry nondiscrimination “implicitly included nondiscrimination on the community” or malaiyaha maal ho are historicall denied grounds of sexual orientation.” This is despite the fact that same access to dignified orking conditions access to adeuate ater sex relations are criminalized in terms of the Penal Code. housing nutrition and ualit health care he malaiyaha maal are some of the most marginalised eole in Sri Lanka affected b The right to work for women and persons with disabilities was also the itienshi t o. of the citienshi uestion of the an area of concern for the CESCR. t pointed out that, for malaiyaha maal ere being resoled as recentl as ccording to the oint iil Societ Shado reort submitted to The State of Economic, Social and Cultural Rights in Sri Lanka: the S onl of this communit hae assed the eneral A oint Civil Society Shadow Report to the United Nations Committee on Economic Social and Cultural Rights”, April 2017, pp. 112, https:tbinternet.ohchr.orgTreatiesCESCRShared2ocumentsLA CESCR General Comment No. 3: The Nature of States Parties’ Obligations NTCESCRCSSLA222E.pdf rt ara of the oenant ecember aailable at 2 CESCR, p.3 at para httreforldorgdfidedf at aras and 3 ith a side note “Unnatural Offenses”, section 365 criminalizes same sex S at ara relations. itienshi mendment t o of UPR, p. at para 2

165 Sri Lanka: State of Human Rights: 2018

example, the 3 uota for persons ith disailities as not Specific recommendations to the government included protecting implemented adeuately.65 the economic and social rights of workers in the informal economy, the right to form and oin trade unions, and providing In Sri Lanka, women’s participation in the formal labour market adeuate wages, minimum wages and social security The right remains lo, and many are clustered in loincome os such as to work is also constrained by the restrictive application of trade the garment sector or in the tea plantations in the hill country. On union rights in the Constitution to citizens of Sri Lanka, which the other hand, Sri ana does not estimate or alue the or y ecludes noncitizens who nevertheless are permitted to work in omen in the informal economy oth as full time or part time care the country giers and in informal or such as domestic orers, cleaners, coos, and other occupations.66 In terms of the right to work, women are specifically targeted in discriminatory regulations which prevent women who have he informalization of or67 is another grae area of concern that children below the age of five years from migrating for work the Committee commented on, and the resulting precariousness of without a ‘family background report’ from the rama iladhari or oring conditions. CEA also highlighted the concentration evelopment Officers of the inistry of oreign Employment70 of omen in the informal sector and the intersectional A 201 challenge to this circular was reected by the Supreme discrimination for groups such as former comatants and domestic Court of Sri Lanka71 A further circular was issued in une 2015, orers hich affect their right to or.6 which came into effect from August 2015 Provision 10 of the circular says that mothers of children with a disability should not be recommended for foreign employment isability is not defined 65 CESCR, p. at para 2 66 Ground Views, “Unpaid Care Work: The Overlooked Barrier in Women’s in the circular The circular also introduced an age limit for migrant Economic Empowerment”, Anarkalee Perera, 15 September 2017, work for different countries72 httpgroundies.org2017015unpaidcareortheoerlooed arrierinomenseconomicempoerment 67 “Informalization of work” is a phenomena where increasingly employers are turning to informal arrangements for or instead of hiring employees on fixed term or permanent contracts hich attract social security enefits and CESC, p5 at para 0 other employee rights. ue to uneual argaining poer of employees, this 70 inistry of oreign Employment, inisterial Circular 20151, results in ulnerale orers, ho may e hired or fired at him, ho hae no EA101, available at fixed place of employment and ho ill hae no claims to pension, to social http:mfegovlkdownloadsCircularsEnglishpdf security enefits attached to permanent employment, or een leaeholidays. 71 ‘Migrant worker challenges Govt. over restrictive rule’, unday Times T, In most cases this results in “selfemployment” where the employee takes all 010201, available at http:wwwsundaytimeslk1001business riss of finding or, for example, domestic orers, agricultural orers, and timesmigrantworkerchallengesgovtoverrestrictiverule5771html increasingly een some roles that ere permanent employment contracts in the 72 inistry of oreign Employment, inisterial Circular 20151, past. EA101, available at 6 CEA, p. http:mfegovlkdownloadsCircularsEnglishpdf

166 International Monitoring of Human Rights in Sri Lanka 2017 example, the 3 uota for persons ith disailities as not Specific recommendations to the government included protecting implemented adeuately.65 the economic and social rights of workers in the informal economy, the right to form and oin trade unions, and providing In Sri Lanka, women’s participation in the formal labour market adeuate wages, minimum wages and social security The right remains lo, and many are clustered in loincome os such as to work is also constrained by the restrictive application of trade the garment sector or in the tea plantations in the hill country. On union rights in the Constitution to citizens of Sri Lanka, which the other hand, Sri ana does not estimate or alue the or y ecludes noncitizens who nevertheless are permitted to work in omen in the informal economy oth as full time or part time care the country giers and in informal or such as domestic orers, cleaners, coos, and other occupations.66 In terms of the right to work, women are specifically targeted in discriminatory regulations which prevent women who have he informalization of or67 is another grae area of concern that children below the age of five years from migrating for work the Committee commented on, and the resulting precariousness of without a ‘family background report’ from the rama iladhari or oring conditions. CEA also highlighted the concentration evelopment Officers of the inistry of oreign Employment70 of omen in the informal sector and the intersectional A 201 challenge to this circular was reected by the Supreme discrimination for groups such as former comatants and domestic Court of Sri Lanka71 A further circular was issued in une 2015, orers hich affect their right to or.6 which came into effect from August 2015 Provision 10 of the circular says that mothers of children with a disability should not be recommended for foreign employment isability is not defined 65 CESCR, p. at para 2 66 Ground Views, “Unpaid Care Work: The Overlooked Barrier in Women’s in the circular The circular also introduced an age limit for migrant Economic Empowerment”, Anarkalee Perera, 15 September 2017, work for different countries72 httpgroundies.org2017015unpaidcareortheoerlooed arrierinomenseconomicempoerment 67 “Informalization of work” is a phenomena where increasingly employers are turning to informal arrangements for or instead of hiring employees on fixed term or permanent contracts hich attract social security enefits and CESC, p5 at para 0 other employee rights. ue to uneual argaining poer of employees, this 70 inistry of oreign Employment, inisterial Circular 20151, results in ulnerale orers, ho may e hired or fired at him, ho hae no EA101, available at fixed place of employment and ho ill hae no claims to pension, to social http:mfegovlkdownloadsCircularsEnglishpdf security enefits attached to permanent employment, or een leaeholidays. 71 ‘Migrant worker challenges Govt. over restrictive rule’, unday Times T, In most cases this results in “selfemployment” where the employee takes all 010201, available at http:wwwsundaytimeslk1001business riss of finding or, for example, domestic orers, agricultural orers, and timesmigrantworkerchallengesgovtoverrestrictiverule5771html increasingly een some roles that ere permanent employment contracts in the 72 inistry of oreign Employment, inisterial Circular 20151, past. EA101, available at 6 CEA, p. http:mfegovlkdownloadsCircularsEnglishpdf

167 Sri Lanka: State of Human Rights: 2018

The objective of the circular is ‘preventing various difficulties and and Members of their Families, states that “a committee has been social problems resulting from the migration of women for formed comprising of the additional secretary of MF,76 s77 of employment’; the result is a discriminatory set of restrictions on the respective divisions, SBF7 officers, to consider the women’s rights to work. The circular was challenged before the appeals of the female migrants who have been denied of FBR.”7 upreme ourt in ecember by an activist invoking public owever, the report also raises concerns that the primary care interest litigation. t appears that the government had thereafter giver role assigned to women who wish to consider migrant wor, issued a further circular on une . and the restrictions on her mobility persisted even at that date. nfortunately, the review does not go into the details of civil society shadow report to the ommittee this particularly discriminatory practice which singles out women on the rotection of the Rights of ll igrant orkers and imposes severe restrictions on the freedom of movement and the right to wor. t did, however, recommend that Sri ana

‘Family Background Report violates migrant women workers' rights’, aily abolish the Family Bacground Report and se specific restrictions 0 ews, ecember , available at on migrating for wor. httpwww.dailynews.lklocalfamilybackgroundreport violatesmigrantwomenworkersrights. Language rights and cutura rights ivil ociety hadow Report to the ommittee on the rotection of the Rights of ll igrant orkers and embers of their Families, ugust , he SR also noted the lac of implementation of the fficial available at anguages aw and the ational rilingual olicy. n alarming httpswww.google.comurlsatrctjesrcssourcewebcd statistic uoted by the SR is that only 1 of schools offer vedahwjhchTccevFghncurlhttps FFtbinternet.ohchr.orgFTreatiesFFharedocu teaching in all three languages in Sri ana. lthough Sri ana mentsFFT.docusgvaw finally permitted the singing of the ational nthem in both hotRRmvn Sinhala and amil on th February 2016, the country’s genuine The shadow report is by civil society organiations; aritas , olombo, ri anka; aritas eth arana, olombo, ri anka; entre for uman Rights and ommunity evelopment R, urunegala, ri mpara istrict S), araipattu, Sri ana Solidarity entre, anka; entre for overty nalysis , olombo, ri anka; ommunity olombo, Sri ana Stand p Movement ana, egombo, Sri ana evelopment ervices , olombo, ri anka; astern elfReliant oring omens Front F), andy, Sri ana. ommunity wakening rganisation , Batticaloa, ri anka; ood 76 Ministry of Foreign mployment hepherd isters, ayakakanda, attala, ri anka; elvetas wiss nterco 77 evelopment fficers for Foreign mployment operation, olombo, ri anka; nstitute of ocial evelopment , andy, 7 Sri ana Bureau of Foreign mployment ri anka; anka athika state orkers nion , elikada, 7 “Shadow report Sri ana o the ommittee on the rotection of the Rajagiriya, ri anka; awyers Beyond Borders ri anka hapter, olombo, Rights of ll Migrant orers and Members of their Families M) For ri anka; ational Trade nion Federation TF, Rajagiriya, ri anka; consideration during the 25th Session lantation Rural ducation evelopment rganiation R, andy, ri 2th ugust, 2016 – 07th September, 2016)”, at p. 15, anka; arvodaya omen's ovement, olombo, ri lanka; aviya httpstbinternet.ohchr.orglayoutstreatybodyeternalownload.aspsy evelopment Foundation, alle, ri anka; ocial rganiations etworking mbolno2fM2f2f2f217angen for evelopment , affna, ri anka; ocial elfare rganiation 0 , p. 12 at para

168 International Monitoring of Human Rights in Sri Lanka 2017

169 Sri Lanka: State of Human Rights: 2018

commitment to nondiscrimination on the basis of language instigated iolence in Aluthgama in 201 and then again in igana remains moot. and in eruar 201, continued to roam free, ithout charges eing pressed against him for the human rights iolations he fate of indigenous people in Sri ana is also dire. nly 20 committed in 201 and seeral other instances of hate speech. The of the eddah children attend school and have been historically onl case that continued against him as the contempt of court marginalied, losing access to traditional occupations and lands charges hen he threatened Sanda Enaligoda outside the due to multiple reasons.1 Sri ana has also not ratified the Homagama Magistrate’s Courts when she was attending hearings ndigenous and ribal eoples onvention, 1 o. 16), and into the enforced disappearance of her husand rageeth the SR has recommended ratification as a step towards Enaligoda. effective realiation of the cultural rights of this group of people. Sri ana voted in favour of the eclaration on the Rights of Women’s rights ndigenous eople, in September 2007.2 erhaps the root of discrimination against omen in Sri ana is the dearth of female representation in political office at all leels of reedom of reigion elected goernment. At the national leel, onl of elected Sri ana emphasied before the niversal eriodic Review that it memers in arliament ere omen for the last 17 ears at the maintained ero tolerance for hate speech and that the police were time of riting. Although Sri ana introduced a uota of 2 duly authoried to tae action whenever such instances were for omen in local goernment in 201, promises to enact similar reported. owever, individuals who were involved in hate speech uotas at proincial leel ere et to e realied in 2017. Thans and incitement to violence lie alagodatte nanasara, who to the uota, representation at local leel ent up from 2 in the last 1 ears to 2 after the eruar 10, 201 local goernment 1 he eddah community has lost land due to designation of traditional lands elections. This is an increase from 2 omen across the island as national pars or forest land. hey have also been repeatedly displaced due elected to local goernment in 2011 to 2000 omen elected in to this, and many have assimilated with local villages, losing traditional livelihood and culture. hey have lost more land after the war, according to 201. Challenges remain, however, in increasing women’s civil society groups, and traditional hunting land, hena slash and burn) representation at national and proincial leel, hich is crucial if cultivation lands have been seied and declared as forest lands. “The State of conomic, Social and ultural Rights in Sri ana oint ivil Society Shadow Report to the nited ations ommittee on CEA, p. at para 2 Economic Social and Cultural Rights”, April 2017, p. 7, Chulani Kodikara and Kumudini Samuel, “The Significance of the 25% httpstbinternet.ohchr.orgreatiesSRShared20ocuments uota for omen in Local Government”, roundiews, SRSS2722.pdf httpsgroundies.org2010207thesignificanceofthe2uotafor 2 nited ations Bibliographic nformation System, omeninlocalgoernment httpunbisnet.un.org00ipac20ipac.spprofilevotinginde.Mter The Bergen Project, ‘Female Political Representation in Sri Lanka increase’, mares6125 1 arch 201, aailale at httpsorgenproect.orgfemalepolitical R, p. 5 at para representationinsrilana

170 International Monitoring of Human Rights in Sri Lanka 2017 commitment to nondiscrimination on the basis of language instigated iolence in Aluthgama in 201 and then again in igana remains moot. and in eruar 201, continued to roam free, ithout charges eing pressed against him for the human rights iolations he fate of indigenous people in Sri ana is also dire. nly 20 committed in 201 and seeral other instances of hate speech. The of the eddah children attend school and have been historically onl case that continued against him as the contempt of court marginalied, losing access to traditional occupations and lands charges hen he threatened Sanda Enaligoda outside the due to multiple reasons.1 Sri ana has also not ratified the Homagama Magistrate’s Courts when she was attending hearings ndigenous and ribal eoples onvention, 1 o. 16), and into the enforced disappearance of her husand rageeth the SR has recommended ratification as a step towards Enaligoda. effective realiation of the cultural rights of this group of people. Sri ana voted in favour of the eclaration on the Rights of Women’s rights ndigenous eople, in September 2007.2 erhaps the root of discrimination against omen in Sri ana is the dearth of female representation in political office at all leels of reedom of reigion elected goernment. At the national leel, onl of elected Sri ana emphasied before the niversal eriodic Review that it memers in arliament ere omen for the last 17 ears at the maintained ero tolerance for hate speech and that the police were time of riting. Although Sri ana introduced a uota of 2 duly authoried to tae action whenever such instances were for omen in local goernment in 201, promises to enact similar reported. owever, individuals who were involved in hate speech uotas at proincial leel ere et to e realied in 2017. Thans and incitement to violence lie alagodatte nanasara, who to the uota, representation at local leel ent up from 2 in the last 1 ears to 2 after the eruar 10, 201 local goernment 1 he eddah community has lost land due to designation of traditional lands elections. This is an increase from 2 omen across the island as national pars or forest land. hey have also been repeatedly displaced due elected to local goernment in 2011 to 2000 omen elected in to this, and many have assimilated with local villages, losing traditional livelihood and culture. hey have lost more land after the war, according to 201. Challenges remain, however, in increasing women’s civil society groups, and traditional hunting land, hena slash and burn) representation at national and proincial leel, hich is crucial if cultivation lands have been seied and declared as forest lands. “The State of conomic, Social and ultural Rights in Sri ana oint ivil Society Shadow Report to the nited ations ommittee on CEA, p. at para 2 Economic Social and Cultural Rights”, April 2017, p. 7, Chulani Kodikara and Kumudini Samuel, “The Significance of the 25% httpstbinternet.ohchr.orgreatiesSRShared20ocuments uota for omen in Local Government”, roundiews, SRSS2722.pdf httpsgroundies.org2010207thesignificanceofthe2uotafor 2 nited ations Bibliographic nformation System, omeninlocalgoernment httpunbisnet.un.org00ipac20ipac.spprofilevotinginde.Mter The Bergen Project, ‘Female Political Representation in Sri Lanka increase’, mares6125 1 arch 201, aailale at httpsorgenproect.orgfemalepolitical R, p. 5 at para representationinsrilana

171 Sri Lanka: State of Human Rights: 2018

ational lan o ction eore the reiew the meaningful engagement on structural discrimination against ationaloernment lan o ori ctionana said eore that the cainet approed reiew the women in law, polic and eecutive action are to e addressed The estalishmentoernment o o ri an ana ndependent said that ationalthe cainet ommission approed theon C recommendations traversed all of these issues stating omenestalishment in o oweer an ndependent at the time ational o writin ommissionthe ommission on that Sri Lanka must improve the representation of women in omenhas not eenin set upoweer t is interestin at the time to o also writin recall the that ommission as ar ac politics the government of Sri Lanka and detailed specific steps ashas not een similar set upcommitments t is interestin were to made also recallto set that up asa arnational ac to do so commissionas similar on women commitments which waswere neer made ulilled to set up a national commission on women which was neer ulilled The CSCR noted the structural issues which impact women’s iscriminator laws which are contrar to the riht to eualit rights in Sri Lanka This includes the lack of Tamil language enshrinediscriminator in rticle laws which o theare onstitutioncontrar to the still riht continue to eualit to e capailit in police stations in parts of the countr which leads to appliedenshrined and in cannot rticle e challened o the onstitution due to the operationstill continue o rticle to e arriers in access to justice for women n the C review in applied heand cannotutaposition e challened o these due two to contrar the operation positions o rticlemeans earl 2, the same concerns were raised and the Committee that laws he that utaposition perpetuate discrimination o these two continuecontrar topositions appl nemean os recommended that language arriers which prevent access to thethat e laws recommendations that perpetuate discrimination o to continue the oernment to appl in ne o justice for women e addressed through specific measures such as wasthe eto repealrecommendations rticle o o the onstitution to the oernment he ommittee in increasing the numer of Tamil speaking judicial enforcement wasalso torecommended repeal rticle enactin o the laws onstitution to address he intersectional ommittee officers, guaranteeing the independence and impartialit of the discriminationalso recommended includi enactinn caste lawsased to addressdiscrimination intersectional he judiciar, increasing gender sensitivit of the judiciar, and capacit discriminatordiscrimination lawsincludi that naect caste womenased rane discrimination rom personal lawshe uilding across a range of law enforcement officers suchdiscriminator as the uslim laws arriage that aect and iorewomen t rane to therom and personal eeloment laws suchrdinane as the which uslim discriminates arriage and aainstiore tmen to and the womenand eeloment isis Marital rape and genderased violence were themes that were rdinane which discriminates aainst men and women isis noted oth the C and the CSCR espite the p para national plan of action to address seual and genderased violence ‘Bill to establish p para National Women’s Commission Soon’, aily irror ‘Bill to establish aailale National at httpwwwdailmirrorltech Women’s Commission Soon’, aily irror 222, the countr was et to implement actions n terms o aailale rticle at httpwwwdailmirrorltech o the onstitution o ri ana leislati on that is recommended therein to address the structural issues which lead incompatile n terms o withrticle the undamental o the onstitution rihts chapter o ri will ana continue leislati to operateon that is to the high levels of genderased violence in the countr ne irrespectieincompatile o with such the inconsistenc undamental hereore rihts chapter or eample will continue sections to operateo the and irrespectie o such inconsistenc hereore or eample sections o the and of the ke recommendations of the CSCR was to implement the eelopment rdinance which discriminate aainst women and thereore iolateeelopment rticle rdinance continue which to be discriminate legal despite aainst this inconsistency. women and thereore“ll eistin iolatewritten rticlelaw and unwritten continue law to beshall legal e despitealid and this operatie inconsistency. notwithstandin “ll eistin an inconsistencywritten law and with unwritten the preceding law shall provisions e alid andof this operatie Chapter.” notwithstandin Article 16(1), an C, p at para 22 inconsistency onstitution with the preceding provisions of this Chapter.” Article 16(1), C, p at para onstitution C, pp at paras 222 p at para d CSCR, p , para p at para d

172 International Monitoring of Human Rights in Sri Lanka 2017 ational lan o ction eore the reiew the meaningful engagement on structural discrimination against ationaloernment lan o ori ctionana said eore that the cainet approed reiew the women in law, polic and eecutive action are to e addressed The estalishmentoernment o o ri an ana ndependent said that ationalthe cainet ommission approed theon C recommendations traversed all of these issues stating omenestalishment in o oweer an ndependent at the time ational o writin ommissionthe ommission on that Sri Lanka must improve the representation of women in hasomen not eenin set upoweer t is interestin at the time to o also writin recall the that ommission as ar ac politics the government of Sri Lanka and detailed specific steps ashas not een similar set upcommitments t is interestin were to made also recallto set that up asa arnational ac to do so commissionas similar on women commitments which waswere neer made ulilled to set up a national commission on women which was neer ulilled The CSCR noted the structural issues which impact women’s iscriminator laws which are contrar to the riht to eualit rights in Sri Lanka This includes the lack of Tamil language iscriminatorenshrined in rticle laws which o theare onstitutioncontrar to the still riht continue to eualit to e capailit in police stations in parts of the countr which leads to appliedenshrined and in cannot rticle e challened o the onstitution due to the operationstill continue o rticle to e arriers in access to justice for women n the C review in applied heand cannotutaposition e challened o these due two to contrar the operation positions o rticlemeans earl 2, the same concerns were raised and the Committee that laws he that utaposition perpetuate discrimination o these two continuecontrar topositions appl nemean os recommended that language arriers which prevent access to thethat e laws recommendations that perpetuate discrimination o to continue the oernment to appl in ne o justice for women e addressed through specific measures such as wasthe eto repealrecommendations rticle o o the onstitution to the oernment he ommittee in increasing the numer of Tamil speaking judicial enforcement wasalso torecommended repeal rticle enactin o the laws onstitution to address he intersectional ommittee officers, guaranteeing the independence and impartialit of the discriminationalso recommended includi enactinn caste lawsased to addressdiscrimination intersectional he judiciar, increasing gender sensitivit of the judiciar, and capacit discriminatordiscrimination lawsincludi that naect caste womenased rane discrimination rom personal lawshe uilding across a range of law enforcement officers suchdiscriminator as the uslim laws arriage that aect and iorewomen t rane to therom and personal eeloment laws suchrdinane as the which uslim discriminates arriage and aainstiore tmen to and the womenand eeloment isis Marital rape and genderased violence were themes that were rdinane which discriminates aainst men and women isis noted oth the C and the CSCR espite the p para national plan of action to address seual and genderased violence ‘Bill to establish p para National Women’s Commission Soon’, aily irror ‘Bill to establish aailale National at httpwwwdailmirrorltech Women’s Commission Soon’, aily irror 222, the countr was et to implement actions n terms o aailale rticle at httpwwwdailmirrorltech o the onstitution o ri ana leislati on that is recommended therein to address the structural issues which lead incompatile n terms o withrticle the undamental o the onstitution rihts chapter o ri will ana continue leislati to operateon that is to the high levels of genderased violence in the countr ne irrespectieincompatile o with such the inconsistenc undamental hereore rihts chapter or eample will continue sections to operateo the and irrespectie o such inconsistenc hereore or eample sections o the and of the ke recommendations of the CSCR was to implement the eelopment rdinance which discriminate aainst women and thereore iolateeelopment rticle rdinance continue which to be discriminate legal despite aainst this inconsistency. women and thereore“ll eistin iolatewritten rticlelaw and unwritten continue law to beshall legal e despitealid and this operatie inconsistency. notwithstandin “ll eistin an inconsistencywritten law and with unwritten the preceding law shall provisions e alid andof this operatie Chapter.” notwithstandin Article 16(1), an C, p at para 22 inconsistency onstitution with the preceding provisions of this Chapter.” Article 16(1), C, p at para onstitution C, pp at paras 222 p at para d CSCR, p , para p at para d

173 Sri Lanka: State of Human Rights: 2018

oint ownership, inheritance and succession. he government to e eetie addreed, and DA oented on te ow reported to the CAW Committee that a draft amendment to ner o proetion, inetigation and onition o the and eeloment rdinane was under review by the egal traier teee n te oter and, te poie arret raftsman, but at the time of writing more than a year after the woen engaged in protittion, oten eidened te at tat CAW review, no further update on such an amendment has te are in poeion o ondo e are et to araent, been forthcoming. ea rier and etortion, on te ai o a riti era aw, te agrants rdinane. ne o te reoendation te DA he government also mentioned before the CAW Committee oittee to te goernent o ri Lana wa to repea te in early 1 that a Cabinet SubCommittee was reviewing the agrants rdinane and redre traiing taing peii uslim arriage and iore t. he said subcommittee (A eare and ation toward ti end SubCommittee) was first set up in , deliberated for years, and the report was only issued in anuary 1. he report was also Children’s rights received with severe criticism and there were allegations that the ri Lana i et to an id arriage in te ontr, wi i ti report was not valid.6 he A SubCommittee itself has peritted nder te uslim arriage and iore t e disputed its validity, with claims that the final report did not carry protetion o idren reained a aor onern wit id aor, recommendations by other members of the Committee in the iniient protetion o idren ro id ae, neget and main section of the report, and that members who did not attend inaiit to aw enoreent to repond appropriate to tee the committee had also signed off on the report. Civil society also ioation criticised the report, with protests outside the inistry of ustice at the time the report was handed over to the inistry. here has reeom rom tortre n etr ii eetions been no mention of amending the other personal laws, namely the e reiew o ri Lana te oittee againt ortre in ter andyan aw and hesawalamai aw, although the CAW o te nternationa oenant, too pae in e recommended amendments to all of these laws to bring them in eport noted in it Ferar report on ri Lana tat line with international human rights law. inetigation and proetion or te eiada rion aare wa ti not ortoing e deat aed te he CAW review also highlighted the regressive manner in which Sri ana polices se wor. he trafficing of women is yet DA, p at para e reoended te aending o ot the uslim arriage and iore t and arriage egistration rdinane , p, para CAW, p. at para 1(b) , p, para 6 ‘Long Awaited MMDA report a Façade’, The aily T, .1.1, available High Commissioner on Human Rights, “eport o te ie o te nited at httpwww.ft.lcolumnshelongawaitedAreportafaade ation ig oiioner for Human Rights on Sri Lanka,” 66 A,

174 International Monitoring of Human Rights in Sri Lanka 2017

175 Sri Lanka: State of Human Rights: 2018

uneashing of ioene against rotestors in eieria for the he use of torture in Sri Lanka was described by en mmerson, right to ean ater that resute in three eaths, as on met ith the U Special Rapporteur on the promotion and protection of omensation orere the resient in ugust , an human rights and fundamental freedoms while countering inestigations an roseutions for inuries of ersons that ere terrorism, as some of the worst he has seen, in his message at the aege ause the arme fores, as sti at a stansti n conclusion of his official visit in uly . Referring to the use , the rigaier ho as in harge of the ontingent that fire of torture against those arrested under terrorism charges, he noted at rotestors, as gien a iomati osting the disproportionate use of torture against amils in Sri Lanka “Since the authorities use this legislation [PTA] disproportionately hie ourt roeeings hae een ongoing sine in reation against members of the amil community, it is this community that to the eaths of fie outh in rinomaee, there has een no has borne the brunt of the State’s welloiled torture apparatus.” eision or ne information that is aaiae in the ui shere on this ase an on the ase of the murer of ai orkers of rnsitinl stie tion ontra mme, in the year under review, “other than erhaps the most compelling indictment on the slow pace of attemts to oerome iffiuties enountere in summoning or progress in Sri Lanka on the transitional ustice front was by the interviewing potential witnesses now living abroad”. Office of the High Commissioner for Human Rights OHCHR, when the High Commissioner presented his report on ebruary n , ause miitar inteigene offiers in the rageeth . he OHCHR stated that in reference to the Office of knaigoa isaearane ase ere reease on ai hese are a ational Unity and Reconciliation OUR, the various technical fe of the ememati ases that ere ommente on uring the groups and the Secretariat for Coordinating Reconciliation eruar sessions of the Human Rights Couni in most of Mechanisms, that ‘are yet to present a sufficiently convincing or the ases thus highighte, har an rogress ha een mae comprehensive transitional ustice strategy to overcome the legacy of mistrust and scepticism left by a number of inconclusive ad hoc

httsohhrorgenhroieshrreguarsessionsahre no, , ara httpslk.one.un.orgnewsfullstatementbybenemmersonunspecial High Commissioner on Human Rights, “Report of the Office of the United rapporteuronhumanrightsandcounterterrorismattheconclusionofhis ations High Commissioner for Human Rights on Sri Lanka,” official visit HRC, ull Statement by en mmerson, U Special Rapporteur on human rights httsohhrorgenhroieshrreguarsessionsahre and counterterrorism, at the conclusion of his official visit, uly , no, , ara httplk.one.un.orgnewsfullstatementbybenemmersonunspecial High Commissioner on Human Rights, “Report of the Office of the Unite rapporteuronhumanrightsandcounterterrorismattheconclusionofhis ations High Commissioner for Human Rights on Sri Lanka,” officialvisit HRC, Report of the Office of the United ations High Commissioner for httsohhrorgenhroieshrreguarsessionsahre Human Rights on Sri Lanka, Office of the High Commissioner for Human no, age , ara Rights OHCHR, HRC

176 International Monitoring of Human Rights in Sri Lanka 2017 uneashing of ioene against rotestors in eieria for the he use of torture in Sri Lanka was described by en mmerson, right to ean ater that resute in three eaths, as on met ith the U Special Rapporteur on the promotion and protection of omensation orere the resient in ugust , an human rights and fundamental freedoms while countering inestigations an roseutions for inuries of ersons that ere terrorism, as some of the worst he has seen, in his message at the aege ause the arme fores, as sti at a stansti n conclusion of his official visit in uly . Referring to the use , the rigaier ho as in harge of the ontingent that fire of torture against those arrested under terrorism charges, he noted at rotestors, as gien a iomati osting the disproportionate use of torture against amils in Sri Lanka “Since the authorities use this legislation [PTA] disproportionately hie ourt roeeings hae een ongoing sine in reation against members of the amil community, it is this community that to the eaths of fie outh in rinomaee, there has een no has borne the brunt of the State’s welloiled torture apparatus.” eision or ne information that is aaiae in the ui shere on this ase an on the ase of the murer of ai orkers of rnsitinl stie tion ontra mme, in the year under review, “other than erhaps the most compelling indictment on the slow pace of attemts to oerome iffiuties enountere in summoning or progress in Sri Lanka on the transitional ustice front was by the interviewing potential witnesses now living abroad”. Office of the High Commissioner for Human Rights OHCHR, when the High Commissioner presented his report on ebruary n , ause miitar inteigene offiers in the rageeth . he OHCHR stated that in reference to the Office of knaigoa isaearane ase ere reease on ai hese are a ational Unity and Reconciliation OUR, the various technical fe of the ememati ases that ere ommente on uring the groups and the Secretariat for Coordinating Reconciliation eruar sessions of the Human Rights Couni in most of Mechanisms, that ‘are yet to present a sufficiently convincing or the ases thus highighte, har an rogress ha een mae comprehensive transitional ustice strategy to overcome the legacy of mistrust and scepticism left by a number of inconclusive ad hoc httsohhrorgenhroieshrreguarsessionsahre no, , ara httpslk.one.un.orgnewsfullstatementbybenemmersonunspecial High Commissioner on Human Rights, “Report of the Office of the United rapporteuronhumanrightsandcounterterrorismattheconclusionofhis ations High Commissioner for Human Rights on Sri Lanka,” official visit HRC, ull Statement by en mmerson, U Special Rapporteur on human rights httsohhrorgenhroieshrreguarsessionsahre and counterterrorism, at the conclusion of his official visit, uly , no, , ara httplk.one.un.orgnewsfullstatementbybenemmersonunspecial High Commissioner on Human Rights, “Report of the Office of the Unite rapporteuronhumanrightsandcounterterrorismattheconclusionofhis ations High Commissioner for Human Rights on Sri Lanka,” officialvisit HRC, Report of the Office of the United ations High Commissioner for httsohhrorgenhroieshrreguarsessionsahre Human Rights on Sri Lanka, Office of the High Commissioner for Human no, age , ara Rights OHCHR, HRC

177 Sri Lanka: State of Human Rights: 2018

commissions and procedures’. hile appreciating the C made strong recommendations to the government of ri consultative process that the Consultative Tas Force CTF Lanka on guaranteeing women’s participating in all transitional undertoo and noting that its report was handed over to ustice mechanisms. This included a specific recommendation to government in anuary , the OHCHR was clearly sceptical of ensure that at least of the representation in such institutions the pace at which reforms were progressing. On the other hand, comprise women, and to ensure international participation in such the CTF process was appreciated by the OHCHR, calling it ‘broad, mechanisms. independent and inclusive.’ One of the many recommendations of CTF was the setting up of a hybrid court, with a maority of Conflict related seual violence is a cause for grave concern that national udges and at least one international udge. continued to manifest itself even eight years after the end of the armed conflict. n the C review, the Committee was eplicit espite the slow progress on a number of counts, ri ana had that the government of ri ana had failed to provide sufficient moved forward in legislative guarantees on criminalizing enforced data on seual violence committed by the armed forces and police, disappearances with the ratification of the nternational and the steps taen by the tate to investigate, prosecute, convict Convention for the Protection of ll Persons from nforced and impose sentences for such crimes. isappearance, and the passing of the egistration of eaths Temorary roisions mendment t, o. of enabling the Cnlsin issuance of certificates of absence to families of the disappeared, t is clear that despite the opportunities to deliver on promises on as well as the adoption of legislation to establish the Office of human rights and transitional ustice, the government still failed to Missing Persons. The legislation on the Office of Missing Persons tae critical steps in the right direction. The doublefaced nature of was gazetted in eptember . These steps are symbolically international promises utaposed with domestic failures, important to guarantee ustice for the disappeared, but in the face continued to be the trend in ri ana during . On ey matters of years of apathy and failure to guarantee ustice to the such as repealing the Prevention of Terrorism ct, the authorities disappeared these legislative measures mean little to the victims still failed to tae positive steps. The international monitoring of and their families until prosecutions tae place, and the right to human rights during the year highlighted these failures despite remedy is guaranteed. further promises by the government to guarantee all human rights within the country. t is clear though that two years after the HRC Resolution, time is running out for the government to deliver on its obligation to guarantee transitional ustice. On the OHCHR, p. at para OHCHR, p. at para ‘President signs gazette to operationalize Office on Missing Persons’, aily T, eptember , available at httpwww.ft.lnewsPresidentsigns C, p. at para a gazettetooperationaliseOfficeonMissingPersons C, p. at para .

178 International Monitoring of Human Rights in Sri Lanka 2017 commissions and procedures’. hile appreciating the C made strong recommendations to the government of ri consultative process that the Consultative Tas Force CTF Lanka on guaranteeing women’s participating in all transitional undertoo and noting that its report was handed over to ustice mechanisms. This included a specific recommendation to government in anuary , the OHCHR was clearly sceptical of ensure that at least of the representation in such institutions the pace at which reforms were progressing. On the other hand, comprise women, and to ensure international participation in such the CTF process was appreciated by the OHCHR, calling it ‘broad, mechanisms. independent and inclusive.’ One of the many recommendations of CTF was the setting up of a hybrid court, with a maority of Conflict related seual violence is a cause for grave concern that national udges and at least one international udge. continued to manifest itself even eight years after the end of the armed conflict. n the C review, the Committee was eplicit espite the slow progress on a number of counts, ri ana had that the government of ri ana had failed to provide sufficient moved forward in legislative guarantees on criminalizing enforced data on seual violence committed by the armed forces and police, disappearances with the ratification of the nternational and the steps taen by the tate to investigate, prosecute, convict Convention for the Protection of ll Persons from nforced and impose sentences for such crimes. isappearance, and the passing of the egistration of eaths Temorary roisions mendment t, o. of enabling the Cnlsin issuance of certificates of absence to families of the disappeared, t is clear that despite the opportunities to deliver on promises on as well as the adoption of legislation to establish the Office of human rights and transitional ustice, the government still failed to Missing Persons. The legislation on the Office of Missing Persons tae critical steps in the right direction. The doublefaced nature of was gazetted in eptember . These steps are symbolically international promises utaposed with domestic failures, important to guarantee ustice for the disappeared, but in the face continued to be the trend in ri ana during . On ey matters of years of apathy and failure to guarantee ustice to the such as repealing the Prevention of Terrorism ct, the authorities disappeared these legislative measures mean little to the victims still failed to tae positive steps. The international monitoring of and their families until prosecutions tae place, and the right to human rights during the year highlighted these failures despite remedy is guaranteed. further promises by the government to guarantee all human rights within the country. t is clear though that two years after the HRC Resolution, time is running out for the government to deliver on its obligation to guarantee transitional ustice. On the OHCHR, p. at para OHCHR, p. at para ‘President signs gazette to operationalize Office on Missing Persons’, aily T, eptember , available at httpwww.ft.lnewsPresidentsigns C, p. at para a gazettetooperationaliseOfficeonMissingPersons C, p. at para .

179 Sri Lanka: State of Human Rights: 2018

omestic ront economic policies urter eroe economic an social rigts as illustrate uget cuts on essential serices

t is clear tereore tat i genuine political will to guarantee uman rigts is to e emonstrate ten speciic an clear V concerte eorts nee to e taken to tigten te regulator ramework ensure inepenence o te uiciar guarantee all OLD WINE IN NEW BOTTLES: RETURNING OF uman rigts as usticiale an oeraul attitue to uman rigts OLD AUTHORITARIANISM IN THE NEO - among law enorcement an militar personnel are among te LIBERAL ERA mria steps tat ri Lanka as accepte in multiple treat o Vidura Prabath Munsinghe reiews in Ishan Chamara Batawalage

1. Introduction At the dawn of 2017, delivering a lecture titled 'Populist Challenge to Human Rights’ at the London School of Economics, UN Special Rapporteur on Extreme Poverty and Human Rights Philip Alston made the following remark:

“...the challenges the human rights movement now faces are fundamentally different from much of what has gone before. This does not mean, as scholars have told us, that these are ‘the end times of human rights’, that human rights are so compromised by their liberal elite association that they are of little use in the fight against populism, or that we have entered ‘the post-human rights era’. Nor does it mean that we should all despair and move on, or that there is a ‘desperate need’ to find tools other than human rights with which to

 Vidura Prabath Munasinghe is a Senior Researcher at the Law & Society Trust.  Ishan Chamara Batawalage is a Research Assistant at the Law & Society Trust.

180 omestic ront economic policies urter eroe economic an social rigts as illustrate uget cuts on essential serices

 Vidura Prabath Munasinghe is a Senior Researcher at the Law & Society Trust.  Ishan Chamara Batawalage is a Research Assistant at the Law & Society Trust. Sri Lanka: State of Human Rights: 2018

combat the many challenges brought by the new populism combined n ri ana too, there is a conception in pulic as well as in private with an old authoritarianism with which we are all too familiar” sector that human rights is an inconvenience that interferes with ‘development.’ This paper anales three laour struggles that ccoding to lston the ne oulist challenge is ased on the old too place in ri ana during 7 the Telecom manpower strie, authoitaian agument of national secuit, soeeignt and anpower strie in the Ruhunu agampura Port and the strie in economic nationalism hese aguments ae eing oagated the Associated Batter anufactures of Ratmalana with the esent da oulist old leades such as esident onald oective of identifing the economic phenomena that gave rise to um of the nited States, ime iniste aenda odi of these rights issues and to explore the relationship etween these ndia, esident utete of the hiliines, esident ai essias phenomena and the antihuman rights discourse. olsonao of ail, esident nde uda of oland and esident anos de of Hunga he same agument as used e can clearl identif a common thread that inds in the oeit deates ccoding to lston an inceasingl aforementioned three laour struggles together, i.e. the practice of diese aa of goenments eessing the desie to ush ac hiring 'manpower’ from the manpower supplying agencies. against e illas of the intenational human ights egime is Therefore, it is important to analing the historical evolution of emerging as a powerful and energetic ‘coalition of the willing.’ the practice of hiring manpower through third part man power houghout histo thee hae een coalitions that challenged suppling agencies efore exploring the each laour struggle human ights, ut in the ast the nited States and othe leading further. esten and Latin meican goenments hae held steadfast against such sentiments e ae all aae that the ee not 2. Paradigm Shift in Labour? aolitical acts hich ee caied out ith the sole oectie of The first manpower suppling agencies in ri ana came into omoting human ights n the conta, the challenge this time existence in earl s right after the open econom was 7 is emanating mainl fom the cam hich ealie otaed introduced to the countr. owadas most of the private sector themseles as human ights otectos institutions as well as man pulic sector institutions have turned to manpower suppling agencies to get their manpower

Radhia Coomaraswamy. “International Human Rights: Dispelling the Myths,” https:groundviews.org, accessed ovemer , . Phillip Alston. “The Populist Challenge to Human Rights.” in ournal of uman https:groundviews.orginternationalhumanrightsdispelling ights ractice, olume , ssue , – themthsradhiacoomaraswam id Although their initiation ma have occurred prior to 7, the continued imoth Lee “Brexit: the 7 most important arguments for Britain to leave through most part of the year 2017 becoming major topics among the worker’s the EU,” ocom, accessed oeme , , rights movement. httsocomeitaguments 7 idura unasinghe, Reimagining ‘The Worker’ and Resistance in the Neoiera ra id Colomo: aw ociet Trust, , .

182 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era combat the many challenges brought by the new populism combined n ri ana too, there is a conception in pulic as well as in private with an old authoritarianism with which we are all too familiar” sector that human rights is an inconvenience that interferes with ‘development.’ This paper anales three laour struggles that ccoding to lston the ne oulist challenge is ased on the old too place in ri ana during 7 the Telecom manpower strie, authoitaian agument of national secuit, soeeignt and anpower strie in the Ruhunu agampura Port and the strie in economic nationalism hese aguments ae eing oagated the Associated Batter anufactures of Ratmalana with the esent da oulist old leades such as esident onald oective of identifing the economic phenomena that gave rise to um of the nited States, ime iniste aenda odi of these rights issues and to explore the relationship etween these ndia, esident utete of the hiliines, esident ai essias phenomena and the antihuman rights discourse. olsonao of ail, esident nde uda of oland and esident anos de of Hunga he same agument as used e can clearl identif a common thread that inds in the oeit deates ccoding to lston an inceasingl aforementioned three laour struggles together, i.e. the practice of diese aa of goenments eessing the desie to ush ac hiring 'manpower’ from the manpower supplying agencies. against e illas of the intenational human ights egime is Therefore, it is important to analing the historical evolution of emerging as a powerful and energetic ‘coalition of the willing.’ the practice of hiring manpower through third part man power houghout histo thee hae een coalitions that challenged suppling agencies efore exploring the each laour struggle human ights, ut in the ast the nited States and othe leading further. esten and Latin meican goenments hae held steadfast against such sentiments e ae all aae that the ee not 2. Paradigm Shift in Labour? aolitical acts hich ee caied out ith the sole oectie of The first manpower suppling agencies in ri ana came into omoting human ights n the conta, the challenge this time existence in earl s right after the open econom was 7 is emanating mainl fom the cam hich ealie otaed introduced to the countr. owadas most of the private sector themseles as human ights otectos institutions as well as man pulic sector institutions have turned to manpower suppling agencies to get their manpower

183 Sri Lanka: State of Human Rights: 2018

shaped by stronger private land rights, open markets and free trade reuirements fulfilled. he clearly identifiable formal employer shaped by stronger private land rights, open markets and free trade constituted a form of market fundamentalism. oday this politico employee relationship model that eisted in the classical modern constituted a form of market fundamentalism. oday this politico economic ideology is known as neoliberalism. Deregulation of the factories emerged in industrial capitalist societies, was made economic ideology is known as neoliberalism. Deregulation of the labour market is an essential aspect of market fundamentalism complicated with the introduction of the third party the labour market is an essential aspect of market fundamentalism based on fleible accumulation12. his process of deregulation manpower supply agency creating new compleities in labour based on fleible accumulation12. his process of deregulation commenced in ri anka with the introduction of the open relations. commenced in ri anka with the introduction of the open economy in 177. During the past four decades, deregulation has economy in 177. During the past four decades, deregulation has been implemented via three main approaches in ri anka: It was the challenges faced by the eynesian economic model in been implemented via three main approaches in ri anka: the 10s that gave rise to this new employeremployee 1. Introducing antilabour, procapitalist legislative and policy relationship model.10 Rigidity in employeremployee relations 1. Introducing antilabour, procapitalist legislative and policy interventions, social protection responsibility assigned to the state and organied interventions, trade union action by the labour force were identified as barriers. 2. Introducing new diverse forms of working arrangements, 2. Introducing new diverse forms of working arrangements, ccordingly, the idea that government interventions in the market which make worker identity complicated and eclude them which make worker identity complicated and eclude them should be minimied was formulated on the premise that the from the fiedterm labour force thereby getting rid of from the fiedterm labour force thereby getting rid of government is not in a position to receive sufficient information employer responsibility, that would enable it to infer market signals prices. Hence, labour employer responsibility, . Disempowering the trade union movement.1 processes, labour markets, goods and consumption patterns were . Disempowering the trade union movement.1 11 changed dramatically in order to make them more fleible and ow we can eamine the aforementioned three labour struggles ow we can eamine the aforementioned three labour struggles thereby making them more favorable to the employer and less which had resulted due to the practice of hiring manpower which had resulted due to the practice of hiring manpower favorable to the employee. hese changes which were based on the through third party manpower supplying agencies in the light of belief that the interests of mankind can be furthered by liberaliing through third party manpower supplying agencies in the light of deregulation of labour markets under neoliberalism. individual entrepreneurial rights under an institutional framework deregulation of labour markets under neoliberalism. 3. Three Labour Struggles 3. Three Labour Struggles In the early industrial capitalist societies where the modern factories were first ri anka elecom started using outsourced manpower as ri anka elecom1 started using outsourced manpower as emerged the form of employment available was regular, fulltime, wage far back as 1.1 During the early stages, ri anka elecom employment with strict hierarchical control of the factory management. dgell, far back as 1. During the early stages, ri anka elecom tephen. ociology of ork: Continuity and Change in aid and npaid ork ondon: age ublications, 200, 127. 12 Ibid. Ibid. 121 Ibid.idura Munasinghe, Reimagining ‘The Worker’ and Resistance in the Neoiera 10 David Harvey. paces of eoiberalism: owards a heory of neven 1ra idura Colombo: Munasinghe, aw Reimaginingociety rust, ‘The 201, Worker’ 12. and Resistance in the Neoiera eographical Development. Hettner ecture 200, ran teiner erlag, ra Colombo: aw ociety rust, 201, 12. 200.https:dnb.info700 1 100 of the work at was not outsourced. nly part of the workforce was 11 David Harvey, rie istor o Neoieraism, ford: ford niversity 1hired 100 through of the outsidework at manpower was not supplying outsourced. private nly companies. part of the his workforce created wastwo ress, 200, 7. hired through outside manpower supplying private companies. his created two

184 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era shaped by stronger private land rights, open markets and free trade reuirements fulfilled. he clearly identifiable formal employer shaped by stronger private land rights, open markets and free trade constituted a form of market fundamentalism. oday this politico employee relationship model that eisted in the classical modern constituted a form of market fundamentalism. oday this politico economic ideology is known as neoliberalism. Deregulation of the factories emerged in industrial capitalist societies, was made economic ideology is known as neoliberalism. Deregulation of the labour market is an essential aspect of market fundamentalism complicated with the introduction of the third party the labour market is an essential aspect of market fundamentalism based on fleible accumulation12. his process of deregulation manpower supply agency creating new compleities in labour based on fleible accumulation12. his process of deregulation commenced in ri anka with the introduction of the open relations. commenced in ri anka with the introduction of the open economy in 177. During the past four decades, deregulation has economy in 177. During the past four decades, deregulation has been implemented via three main approaches in ri anka: It was the challenges faced by the eynesian economic model in been implemented via three main approaches in ri anka: the 10s that gave rise to this new employeremployee 1. Introducing antilabour, procapitalist legislative and policy relationship model.10 Rigidity in employeremployee relations 1. Introducing antilabour, procapitalist legislative and policy interventions, social protection responsibility assigned to the state and organied interventions, trade union action by the labour force were identified as barriers. 2. Introducing new diverse forms of working arrangements, 2. Introducing new diverse forms of working arrangements, ccordingly, the idea that government interventions in the market which make worker identity complicated and eclude them which make worker identity complicated and eclude them should be minimied was formulated on the premise that the from the fiedterm labour force thereby getting rid of from the fiedterm labour force thereby getting rid of government is not in a position to receive sufficient information employer responsibility, that would enable it to infer market signals prices. Hence, labour employer responsibility, . Disempowering the trade union movement.1 processes, labour markets, goods and consumption patterns were . Disempowering the trade union movement.1 11 changed dramatically in order to make them more fleible and ow we can eamine the aforementioned three labour struggles ow we can eamine the aforementioned three labour struggles thereby making them more favorable to the employer and less which had resulted due to the practice of hiring manpower which had resulted due to the practice of hiring manpower favorable to the employee. hese changes which were based on the through third party manpower supplying agencies in the light of belief that the interests of mankind can be furthered by liberaliing through third party manpower supplying agencies in the light of deregulation of labour markets under neoliberalism. individual entrepreneurial rights under an institutional framework deregulation of labour markets under neoliberalism. 3. Three Labour Struggles 3. Three Labour Struggles In the early industrial capitalist societies where the modern factories were first ri anka elecom started using outsourced manpower as ri anka elecom1 started using outsourced manpower as emerged the form of employment available was regular, fulltime, wage far back as 1.1 During the early stages, ri anka elecom employment with strict hierarchical control of the factory management. dgell, far back as 1. During the early stages, ri anka elecom tephen. ociology of ork: Continuity and Change in aid and npaid ork ondon: age ublications, 200, 127. 12 Ibid. Ibid. 121 Ibid.idura Munasinghe, Reimagining ‘The Worker’ and Resistance in the Neoiera 10 David Harvey. paces of eoiberalism: owards a heory of neven 1ra idura Colombo: Munasinghe, aw Reimaginingociety rust, ‘The 201, Worker’ 12. and Resistance in the Neoiera eographical Development. Hettner ecture 200, ran teiner erlag, ra Colombo: aw ociety rust, 201, 12. 200.https:dnb.info700 1 100 of the work at was not outsourced. nly part of the workforce was 11 David Harvey, rie istor o Neoieraism, ford: ford niversity 1hired 100 through of the outsidework at manpower was not supplying outsourced. private nly companies. part of the his workforce created wastwo ress, 200, 7. hired through outside manpower supplying private companies. his created two

185 Sri Lanka: State of Human Rights: 2018

hired workers from private manpower supplying agencies. ut in In the case of the Ruhunu Magampura ort, the employees of the 200 a subsidiary company to by the name of ri anka ort at the very outset were recruited not by the orts uthority1 elecom Manpower olutions was formed eclusively for the but by a manpower company called Magampura Management purpose of procuring manpower reuired for .1 ater on ri imited which was created by the orts uthority. heir anka elecom Manpower olutions was renamed as Human appointment letters stated that they will be made permanent Capital olutions, but the 100 ownership of the company employees of Magampura Management imited after the remained with .1 ccordingly there were two types of workers completion of a three year probation period. However, after the within , i.e. permanent workers workers directly recruited new government came into power in 201,20 in mid201 workers to and workers hired through Human Capital olutions. came to know that government was planning to hand over the oth types of workers carried out the same duties.17 ermanent Ruhunu Magampura port to China for a year lease21. ith this employees of enjoyed higher pay, better bonuses, job security news workers became agitated as they feared for their job security and all the other perks attributed to the semigovernment workers given that they had been recruited by the Magampura Management while manpower workers workers from Human Capital td., not directly by the orts uthority.22 olutions who performed the same duties did not receive any of these additional perks and received only 1 of the monthly salary hile ri anka elecom is a semigovernment institution and earned by permanent workers.1 Ruhunu Magampura ort was a government institution, the

and a motorbike loan of Rs. 0,000 but the manpower workers are not entitled to any of these perks. types of workers within workers and manpower workers. Most of 1 his has been a trend even in the Colombo harbor. s in the ri anka the times these workers carried out the same duties at although they were elecom, Colombo harbor has two types of workers i.e. government workers hired by different employers. workers recruited to orts uthority and private workers workers hired 1 urusinghe, Interview, ugust 1, 201. through private manpower supplying companies. In Ruhunu Magampura ort 1 ri anka elecom, http:slt.lk, accessed ovember 11, 201, 100 of the workers were hired through a subsidiary company created under http:www.slt.lkenaboutusprofilesubsidaries. the orts uthority. 17 ermanent workers and workers hired through a manpower supplying agency 20 Ruhunu Magampura port was constructed by the former government headed employed by work in the same work places under the same supervisors. by resident Mahinda Rajapaksa from a 07millon loan granted by the Chinese hey receive the same training. hey use the same fingerprint scanners to clock government’ ExportImport ank. Rajapaksa government lost power in 201 in and out of work. he only difference is that one group enjoys lesser rights elections. than the other. 21 he rumours of handing over the Ruhunu Magampura port to China first 1 n worker is entitled to an annual bonus of Rs. 10,000 while they are appeared in mid201. n 0th December 2017 ri ankan government formally paid Rs. 20 per hour for overtime work. Comparatively a manpower worker handed over the port to a joint venture set up by China Merchant ort Holdings receives an annual bonus of Rs. 0,000 and is paid Rs. 170 per hour of overtime Company and ri anka orts uthority for year lease. ccording to the work. permanent worker receives Rs. 1000 monthly as a food and transport agreement China Merchant ort Holdings Company owns of the joint allowance, a Rs. 1000 medical allowance and Rs. 7000 annually for medical venture and the ri anka orts uthority owns 1. testing. hey are also entitled to a concessionary housing loan of Rs. 1,000,000 22 agara, Interview, uly 22, 201.

186 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era hired workers from private manpower supplying agencies. ut in In the case of the Ruhunu Magampura ort, the employees of the 200 a subsidiary company to by the name of ri anka ort at the very outset were recruited not by the orts uthority1 elecom Manpower olutions was formed eclusively for the but by a manpower company called Magampura Management purpose of procuring manpower reuired for .1 ater on ri imited which was created by the orts uthority. heir anka elecom Manpower olutions was renamed as Human appointment letters stated that they will be made permanent Capital olutions, but the 100 ownership of the company employees of Magampura Management imited after the remained with .1 ccordingly there were two types of workers completion of a three year probation period. However, after the within , i.e. permanent workers workers directly recruited new government came into power in 201,20 in mid201 workers to and workers hired through Human Capital olutions. came to know that government was planning to hand over the oth types of workers carried out the same duties.17 ermanent Ruhunu Magampura port to China for a year lease21. ith this employees of enjoyed higher pay, better bonuses, job security news workers became agitated as they feared for their job security and all the other perks attributed to the semigovernment workers given that they had been recruited by the Magampura Management while manpower workers workers from Human Capital td., not directly by the orts uthority.22 olutions who performed the same duties did not receive any of these additional perks and received only 1 of the monthly salary hile ri anka elecom is a semigovernment institution and earned by permanent workers.1 Ruhunu Magampura ort was a government institution, the

187 Sri Lanka: State of Human Rights: 2018

ote tter ntre prvte ompn ner initiate their strike emanin to be recruite irectly to the nn onerp or te pt er t ompn too factory. engge n te prte o rertng mnpoer orer rom prvte mnpoer ppng ompne n ton to regr he challenes face by these workers throuhout the entire permnent orer ro n t or gne to perio of these trae union actions clearly emonstrate the mnpoer orer o ere o rene t onger t precarious nature of ‘manpower labour’. When workers are hired e mot o te ngt t epte te omprtve oer throuh manpower aencies, they hae to eal with the manpower aency which recruite them for their rihts issues while the re p to tem company they actually supply their labour has no responsibility 4. Precarious Labour and Labour Struggles towars them. ccorinly, manpower workers who were ver oton orer ve een ontno employe at these three companies ri anka elecom, emnng to e rerte ret to r n eeom n n aampura Port an ssociate attery anufactures ha to eemer tee orer ne tre ton eal with the manaement of manpower supply aencies te or over tree mont ver orer ere tve olutions, aampura anaement t., an the manpower engge n t tre ton n eemer te n aency from which ssociate attery anufactures obtaine gmpr ngement t orer ne atagraha workers which recruite them rather than the manaement of the movement emnng to e rerte ret to te ort place in which they were employe. heneer there is an aitation tort movement ter trne nto tre ton rng over the issues of worker’s rights, the manaement of their places te ore o ter tre non ton orer or e to of work could conveniently claim that ‘we have no liability towards p rom evng te port rete n r n v ng you’ and transfer the matter to the manpower agency. This could ore to ontro te tton rmng t n t o pr en up with the ismissal of the employees. hen an employer mr te orer o te ote tter ntre seeks to fulfill their labour reuirement throuh a manpower aency such as olutions or aampura anaement t., which are subsiiary companies of their own institution, the parent company can terminate the serice of all its employees by issolin the subsiiary company which is a separate leal entity rnge nterve gt athagraha prtr orm o nonvoent retne eveope without facin any aerse impact to the eistence of the parent tm n eme popr n mn reeom n v rgt company. hereby it is a wellknown fact that the precarious labour movement produces ‘tame workers’ who continue to work tolerating even the “Hambanthota Port employees continue strike action,” Newsfirst.lk, ee toer ttpnertmntotportempoeeontne treton enus ayatilake, nteriew, uly , .

188 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era

189 Sri Lanka: State of Human Rights: 2018

harshest and most unfair working conditions. urthermore, lack of that is constantl eing spread among the permanent workers ob security in this precarious labour arrangements become a the management. decisive factor when fighting for workers’ rights. When Telecom manpower workers started their struggle they had to face all these Those who were recruited the Magampura Management Ltd. to challenges. e emploed in the uhunu Magampura Port were recruited with the condition that the will e made permanent onl after the n , both the permanent workers and the manpower workers completion of a threeear proation period. ence the did not at T had carried out a strike action for days making several oin the atagraha efore the completion of the threeear period. demands including a pay hike and making their obs permanent. nstead it was their parents who oined the atagraha in their owever, only the permanent workers were able to successfully place. The completed three ears of service while the atagraha realie most of these demands while the manpower workers were was going on and then the too oined the protest. n the fourth offered only a meagre pay hike. lthough the interim budget da of the strike the management responded issuing an and Prime Minister’s speech on SLT issue made in the Parliament ultimatum ordering that an emploee who did not return to work in epressed the willingness to absorb the manpower workers . p.m. on the net da would e considered as a deserter. who had completed a service period of years to the T The first action taken the management of ssociated atter carder, it was never implemented. This inaction on the part of Manufactures was to terminate the services of oth the convener the government occurred in a contet which the maority of the and the treasurer of the union. manpower workers had fulfilled the ualifications needed to make an employee permanent evel at ri anka Telecom. 4.1 Organized power of the workers or the political ermanent workers did not oin in the trade union action launched affiliations? by manpower workers as they thought absorbing manpower t is interesting to note how the politicians tried to eploit the workers into the permanent cadre will result in a reduction of the precariousness of the manpower workers especiall in the cases of privileges and perks they were already enoying. This was a fear SLT and Magampura Port to gain political mileage. The Magampura Management Ltd. had given these emploment opportunities to people as a strategic move to ensure continuous support to the then government. The emploees who accepted these emploment opportunities were aware that their os are not

urusinghe, nterview, ugust , . secure unless the government remained in power. Since the were ational ocational ualifications is a nationally recognied vocational educational framework introduced by the Tertiary and ocational S. aapakse nterview Ma . ducation ct o of . evel is considered as the level of Sagara nterview ul . full national level craftsmanship. httpwww.tvec.gov.lkpageid marasinghe nterview ul . urusinghe, nterview, ugust , .

190 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era harshest and most unfair working conditions. urthermore, lack of that is constantl eing spread among the permanent workers ob security in this precarious labour arrangements become a the management. decisive factor when fighting for workers’ rights. When Telecom manpower workers started their struggle they had to face all these Those who were recruited the Magampura Management Ltd. to challenges. e emploed in the uhunu Magampura Port were recruited with the condition that the will e made permanent onl after the n , both the permanent workers and the manpower workers completion of a threeear proation period. ence the did not at T had carried out a strike action for days making several oin the atagraha efore the completion of the threeear period. demands including a pay hike and making their obs permanent. nstead it was their parents who oined the atagraha in their owever, only the permanent workers were able to successfully place. The completed three ears of service while the atagraha realie most of these demands while the manpower workers were was going on and then the too oined the protest. n the fourth offered only a meagre pay hike. lthough the interim budget da of the strike the management responded issuing an and Prime Minister’s speech on SLT issue made in the Parliament ultimatum ordering that an emploee who did not return to work in epressed the willingness to absorb the manpower workers . p.m. on the net da would e considered as a deserter. who had completed a service period of years to the T The first action taken the management of ssociated atter carder, it was never implemented. This inaction on the part of Manufactures was to terminate the services of oth the convener the government occurred in a contet which the maority of the and the treasurer of the union. manpower workers had fulfilled the ualifications needed to make an employee permanent evel at ri anka Telecom. 4.1 Organized power of the workers or the political ermanent workers did not oin in the trade union action launched affiliations? by manpower workers as they thought absorbing manpower t is interesting to note how the politicians tried to eploit the workers into the permanent cadre will result in a reduction of the precariousness of the manpower workers especiall in the cases of privileges and perks they were already enoying. This was a fear SLT and Magampura Port to gain political mileage. The Magampura Management Ltd. had given these emploment opportunities to people as a strategic move to ensure continuous support to the then government. The emploees who accepted these emploment opportunities were aware that their os are not

191 Sri Lanka: State of Human Rights: 2018

emploees of a manpower compan the Ports uthorit could at omnatons were alle or the loal goernment eletons n the an time wind up the manpower compan. To prevent that from ountr urng the same pero an the seretar o the trae happening it was ovious that the will continuousl support the unon onteste representng the r anka od ana eramna ruling part to secure their os. t is elieved man that most . hs mae hm strate rom hs trae unon atsm. of the people recruited to Telecom Solutions have connections to ew others who were atel engage n organng workers ha a particular political part and as a result there is a close connection become strong supporters of a Minister from the United Peoples’ etween the politicians of that part and manpower workers. reeom llane . lthough the was the agree Thus workers tend to turn towards politicians more often to rteron to e gen permanent postons t was not apple epress their grievances instead of ecoming a part of the workers unorml n all the ases. lmost all the persons who were oere movement and fighting collectivel for their rights. permanent os were rom two strts alutara an amanthota. alutara strt got permanent o Trade union action the Magampura Port workers had to e opportuntes whle the workers rom amantota were gen halted when the matter was referred to compulsor aritration os. a worker wante to seure one o these os the were the Laour Minister. efore the compulsor aritration process ompelle to eome a supporter o ether the then Mnster n made an progress the authorities were successful in getting the harge o the aour epartment who represente the alutara workers to consent to a solution convenient to them with the strt or the Mnster who was the most powerul nte involvement of hikks who were active in politics and have Peoples’ Freedom Alliance politician from Hambantota District. connections to various Ministers. ltimatel the workers agreed lso n the ase o eleom Manpower workers man to allow those with Level ualification to e recruited to nterentons ha een mae poltans ase on arous permanent service and accept a compensation amount of s. onnetons the ha wth the workers. t one pont a poltan million each for the others. fter the workers and authorities ha state that he s n a poston to resole ths matter as he s the agreed to this settlement compulsor aritration process was thr most powerul gure n the goernment. eertheless halted as it was not needed anmore. This marked the end of the eleom strke whh was mole n a more uran poltal Ruhunu Magampura port manpower workers’ struggle. settng took the shape o a struggle wth greater nepenene an

rom oemer to eemer nomnatons were aepte or the Sagara nterview ul . oal oernment letons n r anka an the eleton was hel on urusinghe nterview ugust . eruar . nder the section of the ndstria istes ct ct o. of . Minister of Laour can order to settle a dispute compulsor aritration or urusnghe nterew ugust . industrial court.

192 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era emploees of a manpower compan the Ports uthorit could at omnatons were alle or the loal goernment eletons n the an time wind up the manpower compan. To prevent that from ountr urng the same pero an the seretar o the trae happening it was ovious that the will continuousl support the unon onteste representng the r anka od ana eramna ruling part to secure their os. t is elieved man that most . hs mae hm strate rom hs trae unon atsm. of the people recruited to Telecom Solutions have connections to ew others who were atel engage n organng workers ha a particular political part and as a result there is a close connection become strong supporters of a Minister from the United Peoples’ etween the politicians of that part and manpower workers. reeom llane . lthough the was the agree Thus workers tend to turn towards politicians more often to rteron to e gen permanent postons t was not apple epress their grievances instead of ecoming a part of the workers unorml n all the ases. lmost all the persons who were oere movement and fighting collectivel for their rights. permanent os were rom two strts alutara an amanthota. alutara strt got permanent o Trade union action the Magampura Port workers had to e opportuntes whle the workers rom amantota were gen halted when the matter was referred to compulsor aritration os. a worker wante to seure one o these os the were the Laour Minister. efore the compulsor aritration process ompelle to eome a supporter o ether the then Mnster n made an progress the authorities were successful in getting the harge o the aour epartment who represente the alutara workers to consent to a solution convenient to them with the strt or the Mnster who was the most powerul nte involvement of hikks who were active in politics and have Peoples’ Freedom Alliance politician from Hambantota District. connections to various Ministers. ltimatel the workers agreed lso n the ase o eleom Manpower workers man to allow those with Level ualification to e recruited to nterentons ha een mae poltans ase on arous permanent service and accept a compensation amount of s. onnetons the ha wth the workers. t one pont a poltan million each for the others. fter the workers and authorities ha state that he s n a poston to resole ths matter as he s the agreed to this settlement compulsor aritration process was thr most powerul gure n the goernment. eertheless halted as it was not needed anmore. This marked the end of the eleom strke whh was mole n a more uran poltal Ruhunu Magampura port manpower workers’ struggle. settng took the shape o a struggle wth greater nepenene an

193 Sri Lanka: State of Human Rights: 2018

strength as a result of multiple interentions. he da strie ‘We supported a trade union struggle. ut now, some think this is hich as later etended into a fastunto death had to stop hen not a victory gained by us but a gift from politicians’ – emale activist the Minister of abour referred the matter for compulsor who engaged in the Telecom manpower struggle arbitration. ith this moe the intensit of the struggle declined and later approimatel orers ere absorbed into the ‘Although some manpower workers lost their jobs, some people were permanent cadre. ri ana elecom organied a ceremon to made permanent in their jobs. Workers believe that relieving the stress hand oer the appointment letters to the orers ith the on workers even to some extent is an achievement.’ – eader of the participation of politicians ho sought to portra it as an act of mother union which was involved in the Associated attery beneolence. trie action carried out b orers of Associated anufactures strike atter Manufactures AM continued for das and concluded 4.2 Neoliberalism and old authoritarianism ith the suspension of all manpoer orers emploed at AM. t is ver clear that new orm o capitallabour relationship hiring Unlie in the case of permanent emploees also oined this manpower through third part manpower suppling agencies strie displaing solidarit ith the manpoer orers. After the created b eoliberalism through promoting leible labour and end of the strie manpoer orers ere absorbed into the deregulation has made labourers more vulnerable and made them permanent serice in small groups recruited from time to time. easier to be manipulated b the agendas o the ruling political Hoeer the das in hich the carried out the strie had been parties b crippling down the power o the trade unions n sum considered as nopa leae and their annual salar increment for the vestiges o democrac that remained in the countr have been the respectie ear has been ithheld. n all three labour struggles deeated b the neoliberal econom ccording to lston discussed in this chapter the precarious nature of labour created eoliberalism is an antidemocratic phenomena b manpoer suppl is ell eident. As a result orers in the manpower labour arrangements have become apolitical ‘tamed’ n the neoliberal view mass democracy is euated with mob rule. And orers ho alas depend on political patronage. he actiists this typically produces all of the barriers to capital accumulation that ho ere engaged in these three struggles epressed their so threaten power of the upper classes in the 1970’s. The preferred frustration as follos form of governance is that of the “PublicPrivate Partnership” in which state and key business interests collaborate closely together to ‘What we organized was a worker’s struggle. But finally we had to go coordinate their activities around the aim of enhancing capital behind the politicians’ – rade union leader of the agapura ort accumulation the result is that the regulated get to write the rules of

Prominent trade union leaders arious ciil societ organiations actiel supported the elecom struggle. . Hemachandra nterie ul . arasinghe nterie ul .

194 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era strength as a result of multiple interentions. he da strie ‘We supported a trade union struggle. ut now, some think this is hich as later etended into a fastunto death had to stop hen not a victory gained by us but a gift from politicians’ – emale activist the Minister of abour referred the matter for compulsor who engaged in the Telecom manpower struggle arbitration. ith this moe the intensit of the struggle declined and later approimatel orers ere absorbed into the ‘Although some manpower workers lost their jobs, some people were permanent cadre. ri ana elecom organied a ceremon to made permanent in their jobs. Workers believe that relieving the stress hand oer the appointment letters to the orers ith the on workers even to some extent is an achievement.’ – eader of the participation of politicians ho sought to portra it as an act of mother union which was involved in the Associated attery beneolence. trie action carried out b orers of Associated anufactures strike atter Manufactures AM continued for das and concluded 4.2 Neoliberalism and old authoritarianism ith the suspension of all manpoer orers emploed at AM. t is ver clear that new orm o capitallabour relationship hiring Unlie in the case of permanent emploees also oined this manpower through third part manpower suppling agencies strie displaing solidarit ith the manpoer orers. After the created b eoliberalism through promoting leible labour and end of the strie manpoer orers ere absorbed into the deregulation has made labourers more vulnerable and made them permanent serice in small groups recruited from time to time. easier to be manipulated b the agendas o the ruling political Hoeer the das in hich the carried out the strie had been parties b crippling down the power o the trade unions n sum considered as nopa leae and their annual salar increment for the vestiges o democrac that remained in the countr have been the respectie ear has been ithheld. n all three labour struggles deeated b the neoliberal econom ccording to lston discussed in this chapter the precarious nature of labour created eoliberalism is an antidemocratic phenomena b manpoer suppl is ell eident. As a result orers in the manpower labour arrangements have become apolitical ‘tamed’ n the neoliberal view mass democracy is euated with mob rule. And orers ho alas depend on political patronage. he actiists this typically produces all of the barriers to capital accumulation that ho ere engaged in these three struggles epressed their so threaten power of the upper classes in the 1970’s. The preferred frustration as follos form of governance is that of the “PublicPrivate Partnership” in which state and key business interests collaborate closely together to ‘What we organized was a worker’s struggle. But finally we had to go coordinate their activities around the aim of enhancing capital behind the politicians’ – rade union leader of the agapura ort accumulation the result is that the regulated get to write the rules of

Prominent trade union leaders arious ciil societ organiations actiel supported the elecom struggle. . Hemachandra nterie ul . arasinghe nterie ul .

195 Sri Lanka: State of Human Rights: 2018

regulation while “public” division making become ever more its opeations. n anothe instane i ana Teleom ile a it opaue appliation against the i ana Polie stating that the i not tae suiient ation against the potestes ate otaining an hus under eoliberalism powerul semigovernmental bodies enoining oe om the agistate Cout une setion o that control the entral an and iscal power are being created the Ciminal Poeue Coe. uing the Teleom manpoe while the orld an nternational onetar und and stuggle the sentiment epeatel epesse in the out ases an international trade organiations are used at the international level meia ieings the goenment as that the oes ae to leverage control ll o these eist outside the sphere o engage in saotage atiities amaging the i ana Teleom democratic lobbing auditing accountabilit and controls t is in popeties. n man instanes goenment authoities ause this light we need to understand the present da antihuman rights the workers that they are behaving like ‘mob gangs’. When workers populist ideas which have started to dominate the discourse hus o the agampua Pot oupie the to ships peenting them the arguments that are raised against human rights in terms o om leaing the pot the a inteene laiming that the national securit sovereignt and economic nationalism is an situation is an at o pia an that the a has uisition to ideological ront to legitimate the operationaliation o an inteene in suh instanes. pessing his ies in this ega at economic sstem which has no democrac accountabilit and Paliament the Pime iniste Ranil iamasinghe state that transparenc within its management the situation is imposing a geat uen on the national eonom we closel eamine the arguments raised against the labour struggles that were discussed in this chapter it becomes ver clear how the rhetoric o national securit sovereignt and economic Colomo istit Cout Case o.Case o. P. “Sri Lanka Telecom files a writ petition against Police inaction over nationalism has been used to crac down the struggles hen the manpower employees”, accessed October 20, 2018, unions o ri ana elecom and elecom manpower worers http.ailnes.llaoesilanateleom too union action enoining orders against them were obtained ilesitpetitionagainstpolieinationoe. oing to the etion o the Ciminal Poeue Coe in oe to rom courts claiming that their actions obstruct the public and peent ostution annoane o inu o is o ostution annoane o thereb damage the economic activities o the countr n inu to an peson o popet a agistate an issue an oe pohiiting a another similar case the claim was that the obective behind union patiula peson om enteing a popet in his possession o une his action was to disrupt the unctioning o in order to sabotage management. “Enjoying order against SLT trade union protests”, accessed October 18, http.sunaosee.lusinessenoiningoe avid arve eoliberalism and estoration o class power accessed eptember againstslttaeunionpotestspage httpsgsnasileswordpresscomharvepd “Sri Lanka Navy breaks up protests at Hambanthota Port,” hillip lston “The Populist Challenge to Human Rights.”ournal o uman httpsolmeitimenes.om aesse oeme ights ractice olume ssue – httpsolmaitimenes.omahiessilananaeasup olombo agistrate ourt ase o potestsathamantotapot

196 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era regulation while “public” division making become ever more its opeations. n anothe instane i ana Teleom ile a it opaue appliation against the i ana Polie stating that the i not tae suiient ation against the potestes ate otaining an hus under eoliberalism powerul semigovernmental bodies enoining oe om the agistate Cout une setion o that control the entral an and iscal power are being created the Ciminal Poeue Coe. uing the Teleom manpoe while the orld an nternational onetar und and stuggle the sentiment epeatel epesse in the out ases an international trade organiations are used at the international level meia ieings the goenment as that the oes ae to leverage control ll o these eist outside the sphere o engage in saotage atiities amaging the i ana Teleom democratic lobbing auditing accountabilit and controls t is in popeties. n man instanes goenment authoities ause this light we need to understand the present da antihuman rights the workers that they are behaving like ‘mob gangs’. When workers populist ideas which have started to dominate the discourse hus o the agampua Pot oupie the to ships peenting them the arguments that are raised against human rights in terms o om leaing the pot the a inteene laiming that the national securit sovereignt and economic nationalism is an situation is an at o pia an that the a has uisition to ideological ront to legitimate the operationaliation o an inteene in suh instanes. pessing his ies in this ega at economic sstem which has no democrac accountabilit and Paliament the Pime iniste Ranil iamasinghe state that transparenc within its management the situation is imposing a geat uen on the national eonom we closel eamine the arguments raised against the labour struggles that were discussed in this chapter it becomes ver clear how the rhetoric o national securit sovereignt and economic Colomo istit Cout Case o.Case o. P. “Sri Lanka Telecom files a writ petition against Police inaction over nationalism has been used to crac down the struggles hen the manpower employees”, accessed October 20, 2018, unions o ri ana elecom and elecom manpower worers http.ailnes.llaoesilanateleom too union action enoining orders against them were obtained ilesitpetitionagainstpolieinationoe. oing to the etion o the Ciminal Poeue Coe in oe to rom courts claiming that their actions obstruct the public and peent ostution annoane o inu o is o ostution annoane o thereb damage the economic activities o the countr n inu to an peson o popet a agistate an issue an oe pohiiting a another similar case the claim was that the obective behind union patiula peson om enteing a popet in his possession o une his action was to disrupt the unctioning o in order to sabotage management. “Enjoying order against SLT trade union protests”, accessed October 18, http.sunaosee.lusinessenoiningoe avid arve eoliberalism and estoration o class power accessed eptember againstslttaeunionpotestspage httpsgsnasileswordpresscomharvepd “Sri Lanka Navy breaks up protests at Hambanthota Port,” hillip lston “The Populist Challenge to Human Rights.”ournal o uman httpsolmeitimenes.om aesse oeme ights ractice olume ssue – httpsolmaitimenes.omahiessilananaeasup olombo agistrate ourt ase o potestsathamantotapot

197 Sri Lanka: State of Human Rights: 2018

as a result of the conseuent economic loss.1 eputy inister of public or private transportation sstem or an inrastructure acilit or efence uwan Wijewardena justified the involvement of the environment Navy stating that port workers can no longer be considered as ausing serious obstruction or damage to essential services or supplies workers but as pirates.2 Through all these arguments it is ausing obstruction or damage to or intererence with an critical endeavored to reinforce the idea that rights struggles have a inrastructure or logistic acilit associated with an essential service or detrimental effect on national security and national economy. n supply;’ other words, they seem to argue that human rights can be violated if ‘economic development’ is at stake. The ounter Terrorism ill It is important to note that this new Counter Terrorism Bill is being which is tabled in Parliament at the time this chapter was written, drafted not to address the securit threats which could be justified also challenges human rights based on the same argument. during a war time, but in a post war period which development rhetoric has become the popular slogan. In this bill ‘Offence of Terrorism’ is interpreted as ‘an act

committed by any person with the intention of intimidating a population, wrongfully or unlawfully compelling the government 5. Which is Central: National Security or Human of Sri Lanka, or any other government, or an international Security? organiation, to do or to abstain from doing any act, preventing If authoritarianism is becoming the preferred political ideolog in any such government from functioning or causing harm to the this era what is the hope we have about human rights Is this the territorial integrity or sovereignty of Sri Lanka or any other end times for human rights sovereign country by e need to maintain perspective despite the magnitude o the ausing serious damage to propert including public or private challenges eending human rights has never been a consensus proect propert an place o public use a tate or governmental acilit an t has almost alwas been the product o struggle he modern human rights regime emerged out o the ashes o the deepest authoritarian dsunction and the greatest conlagration the world had ever seen 1 “What happened in Hambanthota,” Roar.media, accessed October 7, 2018, httpsroar.mediaenglishlifereportswhathappenedinmagampura iven this antihuman rights populist atmosphere it is important 2 “Attack on Hambanthota port workers: state minister rejects allegations,” to understand that the realiation of human rights is an ongoing Sundayobserver.lk, accessed October , 2018, httpwww.sundayobserver.lk2011211newsattackhambantotaport workersstateministerrejectsallegations Counter Terrorism Bill, the aette of emocratic Socialist Republic of Sri Several petitions have been filed by different parties challenging the ounter anka, art II of September 1, 2018, Sec. 1. 2. d, g, h. accessed Terrorism ill which was tabled in the Parliament on th October 2018. October 18, 2018. http:www.documents.gov.lkfilesbill201828 “Counter Terrorism Bill Challenged in SC”, httpspressreader.com, accessed 2018.pdf November 11, 2018, httpswww.pressreader.comsrilankasundaytimes hillip Alston, “The Populist Challenge to Human Rights,” in ournal o srilanka201810212811002 uman ights ractice, olume , Issue 1, 2017: 1–1.

198 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era as a result of the conseuent economic loss.1 eputy inister of public or private transportation sstem or an inrastructure acilit or efence uwan Wijewardena justified the involvement of the environment Navy stating that port workers can no longer be considered as ausing serious obstruction or damage to essential services or supplies workers but as pirates.2 Through all these arguments it is ausing obstruction or damage to or intererence with an critical endeavored to reinforce the idea that rights struggles have a inrastructure or logistic acilit associated with an essential service or detrimental effect on national security and national economy. n supply;’ other words, they seem to argue that human rights can be violated if ‘economic development’ is at stake. The ounter Terrorism ill It is important to note that this new Counter Terrorism Bill is being which is tabled in Parliament at the time this chapter was written, drafted not to address the securit threats which could be justified also challenges human rights based on the same argument. during a war time, but in a post war period which development rhetoric has become the popular slogan. In this bill ‘Offence of Terrorism’ is interpreted as ‘an act

199 Sri Lanka: State of Human Rights: 2018

e Theeoe i i ipon o ne ho heoei n eeopen epo he ii o i inoe eie o pi on he hn ih ioe i o e hee ne eihe poie n eneie epoen o pi hene The in en ehin he peen popi e ne epenen on pi inne i eeni o eonoi hene o hn ih i h hn ih n e ie o ei o neen h ee peio o he e o nion ei oeein n nion eono opoie eonoi ei e nee o epoe he one en hn ih ioe h poe in hi heoi “...the global shift towards more ‘precarious’ employment reflects changes in the structure of the industries... mployment is much more “It is now time to make a transition from the narrow concept of likely to be temporary or part time – and less protected by trade national security to the all encompassing concept of human security. unions.” People in rich nations seek security from the threat of crime and drug wars in their streets… People in poor nations demand liberation from Theeoe he en ie in hi popi hene e the continuing threat of hunger, disease and poverty.” e oe oee i i ie oon o oee hee oe en ein peene in he e e in The epo o he P ieniie een in eoie o oieie ie i n Thi h hppene in e o he hn ei eonoi oo heh enionen peon oinn ie o ii n poii ih in he hn oni n poii ei ih ioe oin o Phiip on he eie in oie e oe ineee in ii n poii ih ee hei eonoi enoe oon nenin e on he ene n oi ih e h hene e o hei piiee e eoion ope on epee in oie n he on he oi o he oniie ephiin he hn eneene o hn ei Thi ho e oie he eie piiee ie e oe n oe eni o hn ein h een onino ephie in hene o hei eonoi n oi ih neo hn ih inen h eion on ih o eeopen io eion on nionen n eeopen n he ine eeopen o oin o he P n

n eeopen epo nie ion eeopen Poe P o o niei Pe n eeopen epo nie ion eeopen i Poe P o o niei Pe Phillip Alston. “The Populist Challenge to Human Rights.” in ournal of hpnooeneh uman ights Practice oe e hpneooeionpP Virginia Bras Gomes, “Beyond civil and political rights: Economic, social and hpnoehieopon cultural rights are human rights too,” Interview by Vidura Prabath Munasinghe, eview o e ooo oie T

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201 Sri Lanka: State of Human Rights: 2018

ri ana has ratiied the International Convention on Economic, protests organed demandng the goernment to return prate ocial and Cultural Rights ICECR and I conventions. lands occuped the mltar n the orth s a result o these hen we consider the current anti human rights populist contet, soldart moements people who were engaged n the other rghts human security is a better approach to demand the ri anan state to struggles etended ther support towards the workers who adhere to these international obligations. ithin this approach it is were acng economc dcultes as a result o ther nolement important to eplore the new strategies being developed by the n the strke acton armers who were protestng aganst the victims o economic rights violations. In this respect we need to destructon caused the ma a proect rought a porton o eep emphasiing the need to radicalie the conventional ther egetale harest whle shermen who were protestng approaches to the worker’s struggles as much as the need to aganst ort t due to the negate eects t makes on ther broaden the conceptualiation o human rights. lelhood suppled a porton o ther sh harest to the elecom workers who were suerng economcall th umarasr an 6. Empathy and Solidarity alternate muscan perormed at the protest enue encouragng Although the Telecom manpower struggle initially displayed signs the workers hese soldart actons helped elecom workers to o dependence on politicians as eplained above, it later evolved gan momentum and to contnue ther struggle or das into a movement comprised o multiple progressive actors such as n actst who was actel noled n the agampura ort letoriented trade union leaders, social activists, public intellectuals manpower struggle stated that ther struggle had relatel less and artists. As a result, it became an intense radical site which support rom the outsde groups or two reasons amanthota s collaborated with the other rights struggles which were unolding a remote locaton and the poltcal as o the workers was a in the island at that time. or instance, the Telecom manpower worers participated in the initial discussions organied to mobilie the people who were economically and environmentally aected nronmentalsts hae argued ths wll make man aderse enronmental mpacts ter the proect was started n t aected the lelhoods o the by the construction o the Colombo International inancial City shermen n the areas north to the olomo haror due to land llng acttes commonly nown as the Port City proect. They also oined the th the creaton o new land coastal eroson ntensed n an area whch stretches aout kms rom the proect ste shng communtes aected these aderse results o the proect emachandra nterew ul undamental conventions, Priority conventions, Technical conventions Uma Oya is one of Sri Lankan government’s large scale multipurpose proects including͸Ͷ orced abour Convention, reedom o Association and Protection o carred out n andarawela nder ths proect drllng o a km tunnel or the Right to rganie Convention, Right to rganie and Collective Bargaining the hdro power plant egan n ecemer ter a ew das ground water Convention, Eual Remuneration Convention, Abolition o orced abour started seepng nto the tunnel resultng n damage to oer houses on the Convention, iscrimination Employment and ccupation Convention, Minimum surace o the tunnel lso ground water dred out n the large etent o the arm Age Convention and orst orms o Child abour Convention lands ulc unrest oer ths sudden deastaton erupted and protests were Colombo International inancial City CIC is a special inancial one which organized by an umbrella organization named ‘People’s ront aganst ma a is planned to be built on a reclaimed land o ha adacentǤ to the Colombo Multi Destructive Project’. harbor. This proect has been criticied by many parties or dierent reasons. ottegoda nterew une

202 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era

203 Sri Lanka: State of Human Rights: 2018

knon fact. ltoug most of te orkers ere supporters of te “People are more radical than we thin t they act radically only within the former government and it was obvious that former President’s site of the strle. e can witness empathy and solidarity only within that political camp could make a great influence in teir strongold specific site. It does not extend to other spaces of their everyday life.” orkers ere careful not to obtain any oter support from tem apart from te legal assistance for te court cases. en economic his is the sentiment ommon eressed at the end of amost a ardsips became severe tey opted to visit eekly fairs in te rights strugges Peoe who too strong radia deisions and nearby areas suc as Sooriyaea ambantota and alasmulla disaed astonishing miitan during the ma a and and made people aare of teir struggle and sougt teir support. athuaswaa and Panama strugges did not disa the same rogressiveness outside the site of the strugge he sentiments On te oter and te orkers struggle in ssociated attery eressed toda on the three worers strugges we disussed in this Manufacturers as uniue as permanent orkers also joined te hater show no differene to this ommon narrative strike in support of te manpoer orkers. n most of te orkplaces te orkforce is split into to categories permanent 7. Looking Beyond 2017... orkers and manpoer orkers. mployers purposely maintain a rguments that favour the ouist haenge to human rights division beteen tese to categories by portraying tat one group ontinue to reate an environment whih is onduive to the is a treat to te oter group. is ay te management makes sure tat tey can ave an uninterrupted production even if one emahandra nterview u set of te orkers decides to carry out a trade union action. ut in fter reveaing that ground water in rama iadhari ivisions in eiveriaathuawaa in amaha istrit have been ontaminated from the te case of ssociated attery Manufactures bot sets of orkers disosed hemias of a rubber goves manufaturing oman oa eoe ere united in teir trade union action. organied as ‘Siyane Environment Protection Movement’ to demand the remova of the fator from the area and for rovision of ean water n en e consider te various approaces and strategies adopted ugust rm troos attaed one of the rotests iing three outh and inuring over ina fator was removed from the area in tese tree struggles it is evident tat tere are positive lessons n the government forib removed about famiies who had been to be learned apart from te most common narrative of party utivating and for over ears in the Panama area in mara istrit and politics undermining te orkers solidarity and collective struggle. auired ands for a miitar estabishment ater the government deided to use these ands to romote tourism he eoe who utivated these ands formed One female activist o actively took part in te elecom an organization named ‘Movement to Protect Pananpaththuwa’ and launched a manpoer struggle reflected on er eperience roonged rotest amaign demanding their ands ba uring Presidentia eetion amaign oosition art romised to reease these ands ba to the viagers ith the new hoes eoe hated the rotest amaign ut after the eetion win no ation was taen to fufi the romises that time the rotest amaign had beome disintegrated idura unasinghe “Waiting for Mahinda mahaththaya: oa Government Election.” n eview o ssue oombo aw Sagara ntervie uly . oiet rust

204 Old Wine In New Bottles: Returning Of Old Authoritarianism In The Neo-Liberal Era knon fact. ltoug most of te orkers ere supporters of te “People are more radical than we thin t they act radically only within the former government and it was obvious that former President’s site of the strle. e can witness empathy and solidarity only within that political camp could make a great influence in teir strongold specific site. It does not extend to other spaces of their everyday life.” orkers ere careful not to obtain any oter support from tem apart from te legal assistance for te court cases. en economic his is the sentiment ommon eressed at the end of amost a ardsips became severe tey opted to visit eekly fairs in te rights strugges Peoe who too strong radia deisions and nearby areas suc as Sooriyaea ambantota and alasmulla disaed astonishing miitan during the ma a and and made people aare of teir struggle and sougt teir support. athuaswaa and Panama strugges did not disa the same rogressiveness outside the site of the strugge he sentiments On te oter and te orkers struggle in ssociated attery eressed toda on the three worers strugges we disussed in this Manufacturers as uniue as permanent orkers also joined te hater show no differene to this ommon narrative strike in support of te manpoer orkers. n most of te orkplaces te orkforce is split into to categories permanent 7. Looking Beyond 2017... orkers and manpoer orkers. mployers purposely maintain a rguments that favour the ouist haenge to human rights division beteen tese to categories by portraying tat one group ontinue to reate an environment whih is onduive to the is a treat to te oter group. is ay te management makes sure tat tey can ave an uninterrupted production even if one emahandra nterview u set of te orkers decides to carry out a trade union action. ut in fter reveaing that ground water in rama iadhari ivisions in eiveriaathuawaa in amaha istrit have been ontaminated from the te case of ssociated attery Manufactures bot sets of orkers disosed hemias of a rubber goves manufaturing oman oa eoe ere united in teir trade union action. organied as ‘Siyane Environment Protection Movement’ to demand the remova of the fator from the area and for rovision of ean water n en e consider te various approaces and strategies adopted ugust rm troos attaed one of the rotests iing three outh and inuring over ina fator was removed from the area in tese tree struggles it is evident tat tere are positive lessons n the government forib removed about famiies who had been to be learned apart from te most common narrative of party utivating and for over ears in the Panama area in mara istrit and politics undermining te orkers solidarity and collective struggle. auired ands for a miitar estabishment ater the government deided to use these ands to romote tourism he eoe who utivated these ands formed One female activist o actively took part in te elecom an organization named ‘Movement to Protect Pananpaththuwa’ and launched a manpoer struggle reflected on er eperience roonged rotest amaign demanding their ands ba uring Presidentia eetion amaign oosition art romised to reease these ands ba to the viagers ith the new hoes eoe hated the rotest amaign ut after the eetion win no ation was taen to fufi the romises that time the rotest amaign had beome disintegrated idura unasinghe “Waiting for Mahinda mahaththaya: oa Government Election.” n eview o ssue oombo aw Sagara ntervie uly . oiet rust

205 Sri Lanka: State of Human Rights: 2018

eistence of economic authoritarianism in total disregard of the principles of democracy accountaility and transparency. t the same time the strategies of deregulation and fleile accumulation which are eing implemented under this economic VI authoritarianism undermine the economic and social rights of the

people. his was the reality depicted in all three rights struggles in which were discussed in this chapter. he populist argument HUMAN RIGHTS AND INCOME TAX IN against human rights on the asis of national security is no longer SRI LANKA a valid one. Human security cannot be secured when peoples’ economic rights are in danger. n this contet it is imperative that Dr Shivaji Felix* economic and social rights struggles which are attriuted lesser importance in lieral elite rights discourse needs to e prioritized 1. Introduction in the agenda. t is important to identify human rights as an The enactment of the Inland Revenue Act, No 24 of 2017 has ongoing struggle and develop solidarity networs among those helped to refocus our attention on income tax in Sri Lanka and its who are suffering from a variety of human rights violations. his compliance with human rights standards, particularly the is the most important lesson to e learnt from the human laor imperatives demanded by the rule of law. The Organisation for rights struggles in . urthermore it is necessary to understand Economic Cooperation and Development’s (OECD) working that the full realization of human rights cannot e achieved without definition of a tax is that it is a compulsory unrequited payment to 1 eradicating all forms of ineualities in a society. t is this the government. A tax payment is regarded as unrequited in view understanding which will lead us to etend solidarity and empathy of the fact that there is no proportionality between the tax paid by eyond our own sites of human rights struggles. a taxpayer and the perceived value of the benefits received from

* LL. B. (Hons.) (London); LL. B. (Hons.) (Colombo); Ph. D. (London); FTII; AFSALS (London); Diploma (cum laude), Institut Du Fédéralisme (Fribourg – Suisse); FRSA (London); Attorney-at-Law of the Supreme Court of Sri Lanka; Sometime Honorary Research Fellow, Faculty of Laws, University College London; Fellow, Royal Society of Arts (London); Member, Society of Legal Scholars (United Kingdom and Ireland); Member - Taxes Committee, International Bar Association; Visiting Lecturer, Faculty of Law, University of Colombo. The author would like to thank Oliver Friedmann for his assistance with the chapter on Human Rights and Income Tax in Sri Lanka. 1 Organisation for Economic Co-operation and Development. 2008. OECD glossary of statistical terms. Paris: OECD. http://site.ebrary.com/id/10251720

206 eistence of economic authoritarianism in total disregard of the principles of democracy accountaility and transparency. t the same time the strategies of deregulation and fleile accumulation which are eing implemented under this economic VI authoritarianism undermine the economic and social rights of the people. his was the reality depicted in all three rights struggles in which were discussed in this chapter. he populist argument HUMAN RIGHTS AND INCOME TAX IN against human rights on the asis of national security is no longer SRI LANKA a valid one. Human security cannot be secured when peoples’ economic rights are in danger. n this contet it is imperative that Dr Shivaji Felix* economic and social rights struggles which are attriuted lesser importance in lieral elite rights discourse needs to e prioritized 1. Introduction in the agenda. t is important to identify human rights as an The enactment of the Inland Revenue Act, No 24 of 2017 has ongoing struggle and develop solidarity networs among those helped to refocus our attention on income tax in Sri Lanka and its who are suffering from a variety of human rights violations. his compliance with human rights standards, particularly the is the most important lesson to e learnt from the human laor imperatives demanded by the rule of law. The Organisation for rights struggles in . urthermore it is necessary to understand Economic Cooperation and Development’s (OECD) working that the full realization of human rights cannot e achieved without definition of a tax is that it is a compulsory unrequited payment to 1 eradicating all forms of ineualities in a society. t is this the government. A tax payment is regarded as unrequited in view understanding which will lead us to etend solidarity and empathy of the fact that there is no proportionality between the tax paid by eyond our own sites of human rights struggles. a taxpayer and the perceived value of the benefits received from

te stateis estion o proportionalit inevital raises e crrentl applicale statte in relation to te taation o estions regarding te airness o a given ta sstem at mst income in ri anka is te nland evene ct o o e te contrition o dierent persons in societ and ow mc wic as een operational since pril ri anka taes mst te pa at sold e eempt rom ta and ow sold persons on te asis o a selassessment e new nland evene ta e tilised ese are legitimate estions tat ave a direct ct as a nmer o eatres tat ave te potential to violate a earing on te econom and te operations o government taxpayer’s fundamental rights and be contrary to the rule of law. owever te also carr strong moral and ideological implications rtermore te new ta assessment sstem appeal strctre wic raise searcing and penetrating estions regarding pament o penalties and interest carge strctre is weigted individal liert personal responsiilit and or mtal against te ta paer and is a matter o serios concern oligations as citiens in a democratic societ committed to te rle o law is capter will proceed irst introdcing te inclsion o a new ndamental rigt — te rigt to inormation — in Sri Lanka’s itin te ield o man rigts te legitimac o taation as Constittion e importance o eginning wit an introdction ecome a matter o concern oert oick arges tat te to tis amendment lies in te act tat a rigt to inormation taation o earnings rom laor is tantamont to slave laor e and the functioning of a taxation system that adheres to a country’s states as ollows man rigts responsiilities ave te potential to conlict is Taxation of earnings from labor is on a par with forced new right raises questions about an individual’s right to have their labor. Some persons find this claim obviously true: taking personal ta inormation protected n raising tese concerns and the earnings of n hours labor is like taking n hours from the determining tat te are indeed concerns rom wic te citien person; it is like forcing the person to work n hours for ma not e protected te remainder o te paper will spend time another’s purpose. Others find the claim absurd. But even analysing tax and rights with respect to Sri Lanka’s conception and these, i they object to forced labor, would oppose forcing aderence to te rle o law derence to te rle o law is te unemployed hippies to work for the benefit of the needy. And most important eatre o a democratic societ tat aims to protect they would also object to forcing each person to work five its citiens rigts nder circmstances were ndamental rigts extra hours each week for the benefit of the needy… provisions designed or one prpose ma in act ave te potential to endanger oter rigts in need o protection peciic attention will e paid to te new nland evene ct to determine te etent ee eg arr arkin (ed), IBFD International Tax Glossary (msterdam D tedn ) at p to which its provisions align with Sri Lanka’s obligations under the ee eg iam rp and omas agel The Myth of Ownership: Taxes and rle o law and rter ow tese provisions ma or ma not Justice (Oord Oord niversit ress ) impede upon an individual’s human rights. oert oick narc, State and Utopia (ew ork asic ooks lising Co ) at p

208 Human Rights and Income Tax in Sri Lanka te stateis estion o proportionalit inevital raises e crrentl applicale statte in relation to te taation o estions regarding te airness o a given ta sstem at mst income in ri anka is te nland evene ct o o e te contrition o dierent persons in societ and ow mc wic as een operational since pril ri anka taes mst te pa at sold e eempt rom ta and ow sold persons on te asis o a selassessment e new nland evene ta e tilised ese are legitimate estions tat ave a direct ct as a nmer o eatres tat ave te potential to violate a earing on te econom and te operations o government taxpayer’s fundamental rights and be contrary to the rule of law. owever te also carr strong moral and ideological implications rtermore te new ta assessment sstem appeal strctre wic raise searcing and penetrating estions regarding pament o penalties and interest carge strctre is weigted individal liert personal responsiilit and or mtal against te ta paer and is a matter o serios concern oligations as citiens in a democratic societ committed to te rle o law is capter will proceed irst introdcing te inclsion o a new ndamental rigt — te rigt to inormation — in Sri Lanka’s itin te ield o man rigts te legitimac o taation as Constittion e importance o eginning wit an introdction ecome a matter o concern oert oick arges tat te to tis amendment lies in te act tat a rigt to inormation taation o earnings rom laor is tantamont to slave laor e and the functioning of a taxation system that adheres to a country’s states as ollows man rigts responsiilities ave te potential to conlict is Taxation of earnings from labor is on a par with forced new right raises questions about an individual’s right to have their labor. Some persons find this claim obviously true: taking personal ta inormation protected n raising tese concerns and the earnings of n hours labor is like taking n hours from the determining tat te are indeed concerns rom wic te citien person; it is like forcing the person to work n hours for ma not e protected te remainder o te paper will spend time another’s purpose. Others find the claim absurd. But even analysing tax and rights with respect to Sri Lanka’s conception and these, i they object to forced labor, would oppose forcing aderence to te rle o law derence to te rle o law is te unemployed hippies to work for the benefit of the needy. And most important eatre o a democratic societ tat aims to protect they would also object to forcing each person to work five its citiens rigts nder circmstances were ndamental rigts extra hours each week for the benefit of the needy… provisions designed or one prpose ma in act ave te potential to endanger oter rigts in need o protection peciic attention will e paid to te new nland evene ct to determine te etent ee eg arr arkin (ed), IBFD International Tax Glossary (msterdam D tedn ) at p to which its provisions align with Sri Lanka’s obligations under the ee eg iam rp and omas agel The Myth of Ownership: Taxes and rle o law and rter ow tese provisions ma or ma not Justice (Oord Oord niversit ress ) impede upon an individual’s human rights. oert oick narc, State and Utopia (ew ork asic ooks lising Co ) at p

209 Sri Lanka: State of Human Rights: 2018

2. The Right to Information. conicated in confidence or for aintaining the athority and t was relatively recently that Sri Lanka explicitly recognised the ipartiality of the diciary right to information as a fundamental right. n the onstitution of Sri Lanka was amended so as to provide a citien (3) In this Article, “citizen” includes a body whether incorporated or with the right of access to information. rticle of the nincorporated if not less than three – forths of the ebers of sch onstitution provides as follows body are citizens

ery citien shall hae the riht of access to any information n order to give meaningful and practical effect to the as proided for by law bein information that is reuired for the constitutional recognition of the right to information the exercise or protection of a citizen’s right held by: arliament enacted the ight to nformation ct o of . a the tate a inistry or any oernment epartment or any statutory Section of the ct provides that body established or created by or under any law b any inistry of a inister of the oard of inisters of a roince or bect to the proisions of section of this ct eery any epartment or any statutory body established or created by a citizen shall hae a right of access to inforation hich is in statute of a roincial ouncil the possession cstody or control of a pblic athority c any local authority and d any other person who is in possession of such information relatin to he proisions of this ct shall not be in derogation of any institution referred to in subpararaphs a b or c of this the poers priileges and practices of arliaent pararaph. Section of the ight to nformation ct o of provides o restrictions shall be placed on the riht declared and reconied the circumstances under which the right of access to information by this rticle other than such restrictions prescribed by law as a may be denied. his right has an important bearing on the necessary in a democratic society in the interests of national security functioning of taxation in Sri Lanka as it relates to human rights. territorial interity or public safety for the preention of disorder or n the context of taxation the right to information can be denied crime for the protection of health or morals and the reputation or the if “disclosure of such information would cause serious preudice to rihts or others priacy preention of contempt of court protection of the economy of Sri Lanka by disclosing prematurely decisions to parliamentary priilee for preentin the disclosure of information change or continue government economic or financial policies relating to … taxation.” urthermore rticle of the onstitution explicitly recognises that there can be lawful

he ineteenth mendment to the onstitution which was certified on ay . ide section c iii of the ight to nforation ct o of

210 Human Rights and Income Tax in Sri Lanka

he ineteenth mendment to the onstitution which was certified on ay . ide section c iii of the ight to nforation ct o of

211 Sri Lanka: State of Human Rights: 2018

constraints on the right to information where such information is can nland evenue refuse to provide such information and on disclosed in confidence which is often the case in the context of what grounds t appears that specific information concerning a tax reorting taxaers. his excetion is also recognised taxpayer cannot be refused by seeing refuge under the statutory the ight to nformation ct o of . here urel provision which permits a public authority to deny access to ersonal information is concerned there can e no ulic interest information when the nland evenue ct, o 2 of 2, also in its disclosure unless the larger ulic interest ustifies such preserves a taxpayer’s right to information. This taxpayer right disclosure. he disclosure of commercial information is also must necessarily supplement a right that any citien possesses constrained law. hilst the term phrase “commercial under and in terms of the ight to nformation ct, o 2 of 2. information” is not exhaustively defined it could encompass trade secrets commercial confidence and intellectual roert rights t is also relevant to note that ri ana does not have a ata which if disclosed could confer an unfair adantage on cometitors rotection ct to cover the holders of personal data or data of or harm a person’s competitive advantage. here there is a commercial significance — these matters are usually covered in the statutor constraint imosed restricting the disclosure of private sphere by entering into a nondisclosure agreement between information the ulic authorit is reuired to undertae a the party providing the data and the party holding the data. balancing exercise by weighing the individual’s right to privacy or owever, where there is a statutory requirement to provide a person’s right to the protection of sensitie commercial personal or commercial information to the epartment of nland information from disclosure against the larger ulic interest in evenue the secrecy provisions of the relevant fiscal enactment maing such information aailale. will be engaged to the extent provided by law.

The question that requires consideration is whether an individual’s t is vitally important that the collection of taxation is subject to right to information overrides a taxpayer’s right to have the principles demanded by the rule of law. idelity to the rule of information relating to his her or its affairs treated with law is the single most important factor that differentiates confidence. urthermore if the tax information relates to the democratic states that collects tax from a totalitarian state. erson reuesting the information and no third art is inoled 3. The Rule of Law ection i of the iht to Inoration Act, o o roides as The conceptual notion of the rule of law traces its origins to follows: “subject to the provisions of section 29 (2) (c), the information has been classical ree thought and relevant passages are found in the sulied in confidence to the ulic authorit concerned a third art and the third party does not consent to its disclosure.” wors of lato and ristotle. rian Tamanaha, a leading scholar on ection a of the iht to Inoration Act, o o ection d of the iht to Inoration Act, o o . ection a and section d of the iht to Inoration Act, o o ection () (c) (iii) of the iht to Inoration Act, o o and ection . of the Inland eenue Act, o o

212 Human Rights and Income Tax in Sri Lanka constraints on the right to information where such information is can nland evenue refuse to provide such information and on disclosed in confidence which is often the case in the context of what grounds t appears that specific information concerning a tax reorting taxaers. his excetion is also recognised taxpayer cannot be refused by seeing refuge under the statutory the ight to nformation ct o of . here urel provision which permits a public authority to deny access to ersonal information is concerned there can e no ulic interest information when the nland evenue ct, o 2 of 2, also in its disclosure unless the larger ulic interest ustifies such preserves a taxpayer’s right to information. This taxpayer right disclosure. he disclosure of commercial information is also must necessarily supplement a right that any citien possesses constrained law. hilst the term phrase “commercial under and in terms of the ight to nformation ct, o 2 of 2. information” is not exhaustively defined it could encompass trade secrets commercial confidence and intellectual roert rights t is also relevant to note that ri ana does not have a ata which if disclosed could confer an unfair adantage on cometitors rotection ct to cover the holders of personal data or data of or harm a person’s competitive advantage. here there is a commercial significance — these matters are usually covered in the statutor constraint imosed restricting the disclosure of private sphere by entering into a nondisclosure agreement between information the ulic authorit is reuired to undertae a the party providing the data and the party holding the data. balancing exercise by weighing the individual’s right to privacy or owever, where there is a statutory requirement to provide a person’s right to the protection of sensitie commercial personal or commercial information to the epartment of nland information from disclosure against the larger ulic interest in evenue the secrecy provisions of the relevant fiscal enactment maing such information aailale. will be engaged to the extent provided by law.

213 Sri Lanka: State of Human Rights: 2018

te re a ares tat te re a as a ts trat Dicey’s conception of the rule of law has had a profound impact t rt re ta a tsa years ater te eyay tes on public law theory and was widely regarded as the benchmar The modern use of the term “the rule of law” is attributed to A. V. for the rule of law in the ommonwealth arol arlow and ey te era ressr s a at xr Richard Rawlings, referring to the influence of Diceys’ theory, ssse t eta s as sttta a mae the following observation According to Dicey’s conception of the term, when applied in the context of English law, “the rule of law” had three distinct Dicey’s Introduction to the Law of the Constitution, published in eas , might almost be described as a substitute for a written constitution. is influence on the development of administrative law te asee artrary per te part te has been equally pervasive. Dicey’s ideas lock up together to form the veret ideal of a “balanced” constitution, in which the executive, envisaged every a e set t rary a astere y as capable of arbitrary encroachment on the rights of individual rary tras citiens, will be subect, on the one side, to political control by te at tat te eera res sttta a are arliament, on the other, to legal control through the common law by te rest rary as te a the courts.

ra aaaa n the ule o aw istory, olitics, heory are Dicey’s notion of the rule of law required, as necessary are versty ress at p ey Introduction to the tudy o the aw o the onstitution preconditions for its validity, a laissefaire economic system and a aa ress liberal democracy — conditions that were prevalent in ngland at ey An Introduction to the tudy o the aw o the onstitution aa ress t e, at p. 188: “We ea te rst pae tat the time when his theory was first formulated owever, since the a s psae r a e ay ae t ser y r s exept r rule of law was perhaps the weaest limb of the wider economic a stt rea a estase te rary ea aer ere te and political philosophy to which Dicey subscribed, it acted as a rary rts te a ts sese te re a s traste t every syste veret ase te exerse y perss atrty e lightening conductor for his critics Dicey eperienced difficulty arbitrary, or discretionary powers of constraint.” ey An Introduction to the tudy o the aw o the onstitution aa ress t e, at p. 193: “We mean in the second place, when meeting are with us the result of udicial decisions determining the rights of we speak of the “rule of law” as a characteristic of our country, not only that private persons in particular cases brought before the courts …” t s a s ave te a t at s a eret t tat ere every arol arlow and Richard Rawlings, Law and dministration ondon a atever e s ra r t s set t te rary a te utterworths, nd edn, , at p realm and amenable to the jurisdiction of the ordinary tribunals.” ee, eg, Robson, ustice and dministrative Law ondon acmillan ey An Introduction to the tudy o the aw o the onstitution ompany imited, vor ennings, he Law and the Constitution ondon aa ress t e, at p. 195: “We may say that the costtt s niversity of ondon ress, th edn, ee also, ile, Constitutionalism pervae y te re a te r tat te eera prpes te and the eparation of owers ndianapolis iberty und, nd edn, , at pp sttt as r exape te rt t persa erty r te rt p –

214 Human Rights and Income Tax in Sri Lanka te re a ares tat te re a as a ts trat Dicey’s conception of the rule of law has had a profound impact t rt re ta a tsa years ater te eyay tes on public law theory and was widely regarded as the benchmar The modern use of the term “the rule of law” is attributed to A. V. for the rule of law in the ommonwealth arol arlow and ey te era ressr s a at xr Richard Rawlings, referring to the influence of Diceys’ theory, ssse t eta s as sttta a mae the following observation According to Dicey’s conception of the term, when applied in the context of English law, “the rule of law” had three distinct Dicey’s Introduction to the Law of the Constitution, published in eas , might almost be described as a substitute for a written constitution. is influence on the development of administrative law te asee artrary per te part te has been equally pervasive. Dicey’s ideas lock up together to form the veret ideal of a “balanced” constitution, in which the executive, envisaged every a e set t rary a astere y as capable of arbitrary encroachment on the rights of individual rary tras citiens, will be subect, on the one side, to political control by te at tat te eera res sttta a are arliament, on the other, to legal control through the common law by te rest rary as te a the courts.

215 Sri Lanka: State of Human Rights: 2018

in conceptualising the rule of law as something general and ile ever law restricts individual reedom to some etent altering common divorced from its social and political context. Dicey’s te means wic people ma use in te pursuit o teir aims, under conception of the rule of law was essentially a construct of a te ule o aw te government is prevented rom stultiing laissefaire economic and liberal democratic political philosophy individual eorts ad oc action itin te nown rules o te which sprung from his antipathy towards the welfare regulatory game te individual is ree to pursue is personal ends and desires, state t was his considered view that the enlargement of state certain tat te powers o government will not e used delieratel to power constituted a threat to the rule of law — it essentially meant rustrate is eorts that unrestrained power had the potential danger of being arbitrary t has been observed that Hayek’s emphasis on the role of general n the contet of the ritish onstitution, Dicey recognised that es estte st citet t ie itic ie. the protection afforded to an individual by way of the rule of law t essetiy eise ey cceti te e which included the separation and independence of udicial i i e cceti ssttie itic power was dependent on the will of a temporary maority of the ee. It is Trevor Allan’s view that Dicey’s conception of the legislature aye, a leading libertarian, provides the rule of law was closely analogous to Hayek’s formulation of the following important eplanation of the rule of law se ccet.

I distinguishes more clearly conditions in a free country ess i eey e es tt te es eyi from those in a country under arbitrary government than the Dicey’s cceti te e ecss i eity ii observance in the former of the great principles known as the ule of cetity iii csistecy i cctiity eiciecy i e Law. tripped of all technicalities this means that government in all cess ccess t stice. ee e s iictes tt its actions is bound by rules fixed and announced beforehand – rules some of Dicey’s critics were right to point out that iscetiy that make it possible to foresee with fair certainty how the authority e is seties esie i ceti ctexts ieite. will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge. hough this ideal . . ye e oad to erdom tee t . . can never be perfectly achieved, since legislators as well as those to . . . onstitutional ustice ieral eor o te ule o aw x x iesity ess t . . whom the administration of the law is entrusted are fallible men, the . . . onstitutional ustice ieral eor o te ule o aw x essential point, that the discretion left to the executive organs wielding x iesity ess t . . Jeffrey Jowell “The rule of law and its underlying values” in Jeffrey Jowell coercive power should be reduced as much as possible, is clear enough. D ie es e anging onstitution x x iesity ess te. . – t . – . Jeffrey Jowell “The rule of law and its underlying values” in Jeffrey Jowell ee, eg, R llan, Constitutional ustice Liberal heory of the ule of Law D ie es e anging onstitution x x iesity ford ford niversity ress, , at p ess te. . – t . .

216 Human Rights and Income Tax in Sri Lanka in conceptualising the rule of law as something general and ile ever law restricts individual reedom to some etent altering common divorced from its social and political context. Dicey’s te means wic people ma use in te pursuit o teir aims, under conception of the rule of law was essentially a construct of a te ule o aw te government is prevented rom stultiing laissefaire economic and liberal democratic political philosophy individual eorts ad oc action itin te nown rules o te which sprung from his antipathy towards the welfare regulatory game te individual is ree to pursue is personal ends and desires, state t was his considered view that the enlargement of state certain tat te powers o government will not e used delieratel to power constituted a threat to the rule of law — it essentially meant rustrate is eorts that unrestrained power had the potential danger of being arbitrary t has been observed that Hayek’s emphasis on the role of general n the contet of the ritish onstitution, Dicey recognised that es estte st citet t ie itic ie. the protection afforded to an individual by way of the rule of law t essetiy eise ey cceti te e which included the separation and independence of udicial i i e cceti ssttie itic power was dependent on the will of a temporary maority of the ee. It is Trevor Allan’s view that Dicey’s conception of the legislature aye, a leading libertarian, provides the rule of law was closely analogous to Hayek’s formulation of the following important eplanation of the rule of law se ccet.

217 Sri Lanka: State of Human Rights: 2018

relatively general viii the persons who administer the rules in an n re ar nton ster racegirdle, . official capacity are accountable for their compliance with rules id, at p. . applicable to their performance and actually administer the law ee, e.g., chapter and of the onstitution. ee, e.g., harvananda, undamental igts in ri ana ommentar consistently with their tenor. olombo ayampathy ickramaratne, undamental igts in ri ana annipitiya tamford Lake, nd edn., hivai eli, owards igts ri Lanka has a modern democratic tradition as old as most liberal onsciousness tud o te pansion o te rontiers o undamental igts urisprudence in ri ana olombo ario ome, merging rends in democracies and is a country governed by the rule of law. Long ulic aw olombo iitha apa Bookshop, Radhika oomaraswamy, before fundamental rights were accorded constitutional status, the deolog and te onstitution ssas on onstitutional urisprudenceolombo , . See, e.g., R K W Goonesekere, “Arm of the Law’ oration delivered on the Tom Bingham, e ule o aw London llen Lane, . occasion of the th nniversary of the aculty of Law, niversity of olombo ohn innis, atural aw and atural igts ford larendon ress, on 24 October 2008; Faisz Musthapha, “Fundamental Rights – hanging , at p. . Judicial Attitudes?” Kamalasabayson Memorial Oration 2011 delivered on 23 id., at pp. – . eptember 2011; Param Cumaraswamy, “An Independent Judiciary: Beacon of

218 Human Rights and Income Tax in Sri Lanka

These views are echoed by Lord Bingham, one of Britain’s former upreme ourt of eylon as ri Lanka was then known senior Law Lords and undoubtedly one of the world’s most acute recognised in a core constitutional principle associated with legal minds, in his celebrated book entitled e ule o aw. Lord the rule of law and held that no person could be deprived of his Bingham points out that the rule of law is not a barren or arid legal liberty ecept by udicial process when it ordered the release of doctrine but constitutes the foundation of a ust and fair society, Bracegirdle. hief ustice brahams pointed out that under our an enduring legacy of a responsible government and an impetus law there was a definite body of wellknown legal principles that for economic growth. The rule of law offers the best prospects for ecluded arbitrary eecutive action. ur constitutional statutes securing peace and cooperation. ohn innis in his famous work, provide for the enforcement of the rule of law and the rights of atural aw and atural igts, points out that the name given to persons so as to curtail or circumscribe the abuse of power. n a state of affairs so as to affirmatively indicate that the legal system ri Lanka acceded to the nternational ovenant on ivil and is “legally in good shape” or “working well” is “the Rule of Law.” olitical Rights. urthermore, the prerogative writs of certiorari, mandamus, proiition and uo warranto are freuently issued by ri innis postulates that a legal system eemplifies or reflects the rule Lankan courts against public officers and state agencies so as to of law to the etent that its rules are i prospective, not constrain them from abusing their powers. This has been coupled retroactive ii not impossible to comply with iii promulgated with an epansion of the scope of the fundamental rights iv clear not vague v coherent with another vi sufficiently urisdiction of the upreme ourt. owever, the efficacy of these stable so as to permit people to be guided by the content of the remedies has been the subect of critical scrutiny and comment in rules vii derived from specific decrees and orders that are recent times. espite this, the upreme ourt has on many themselves guided by rules duly promulgated, clear, stable and relatively general viii the persons who administer the rules in an n re ar nton ster racegirdle, . official capacity are accountable for their compliance with rules id, at p. . applicable to their performance and actually administer the law ee, e.g., chapter and of the onstitution. ee, e.g., harvananda, undamental igts in ri ana ommentar consistently with their tenor. olombo ayampathy ickramaratne, undamental igts in ri ana annipitiya tamford Lake, nd edn., hivai eli, owards igts ri Lanka has a modern democratic tradition as old as most liberal onsciousness tud o te pansion o te rontiers o undamental igts urisprudence in ri ana olombo ario ome, merging rends in democracies and is a country governed by the rule of law. Long ulic aw olombo iitha apa Bookshop, Radhika oomaraswamy, before fundamental rights were accorded constitutional status, the deolog and te onstitution ssas on onstitutional urisprudenceolombo , . See, e.g., R K W Goonesekere, “Arm of the Law’ oration delivered on the Tom Bingham, e ule o aw London llen Lane, . occasion of the th nniversary of the aculty of Law, niversity of olombo ohn innis, atural aw and atural igts ford larendon ress, on 24 October 2008; Faisz Musthapha, “Fundamental Rights – hanging , at p. . Judicial Attitudes?” Kamalasabayson Memorial Oration 2011 delivered on 23 id., at pp. – . eptember 2011; Param Cumaraswamy, “An Independent Judiciary: Beacon of

219 Sri Lanka: State of Human Rights: 2018

occasions eplicitly recognised that the rule of law lies at the heart provisions are very rarely implemented in favour of the taxpayer of our constitution.33 and are reached with impunity he evenue officers often act as if such statutory provisions did not exist in our law owever, For the purpose of this article it is intend to eamine the modern where penalties have to e imposed on a taxpayer for tax in default values underlying Dicey’s conception of the rule of law as a rubric the evenue office fails to demonstrate a similar disinterest for assessing the extent to which Sri Lanka’s new income tax statute complies with the standards contemplated by the rule of nother area of concern relates to the making of assessments in law. herefore, I will eamine the etent to which the Inland the context of the statutory time ar t has een previously held Revenue Act, o 24 of 201 and its application in certain udicial y our courts that it is the assessment alone that must e made decisions and departmental practices complies with the core within the prescried period aleit the notice of assessment can e principles of legality, certainty, consistency, accountability, served after the relevant period onseuently the Department of efficiency, due process and access to ustice — desiderata nland evenue has taken up the position that for the purpose of demanded by the rule of law. engaging the time ar, referred to in various fiscal enactments, what is imperative is the date of the assessment and not the date 4. Legality of the notice of assessment or this purpose reliance is placed upon he principle of legality or fidelity to law makes the twin demand nglish decisions on this point owever, it is relevant to note of i obedience to law; and ii that those eercising public power that in ngland the applicale statutory provisions are different must act within the confines of law. owever, in the contet of the from those applicale in Sri Lanka ta regime in Sri Lanka one often observes this principle being breached. he earlier decision of the Supreme ourt of Sri Lanka in amid ariar v ommissioner o ncome a has now een superseded y Our income ta law has very clear and specific provisions on the decision of the Supreme ourt in ernando v smail refunds of taes and interest payable on such refunds34 similar to prior fiscal legislation.3 Past eperience suggests that these

section interest on refunds of the alue dded ax ct, o of Constitutionalism in a Democracy,” 14th udley Senanayake Memorial Oration as amended delivered on 14 October 2011. See, eg, hapter and hapter and section , of the 33 See, e.g., n re te ineteent mendment to te onstitution, ri ; nland evenue ct, o of aawardena v iaatilae, ri . See, eg, amid ariar v ommissioner o ncome a, 34See, e.g., section 10, 18 and 1 2 of the nland evenue ct, o 24 of 201. See, eg, Piero’s Restaurant and ieria, L D , cited in 3See, e.g., section 200 refunds and section 201 interest payable on refunds Tolley’s VAT Cases 2008, para of te nland evenue ct, o 10 of 200 as amended; section 8 refunds and ri ana a ases

220 Human Rights and Income Tax in Sri Lanka occasions eplicitly recognised that the rule of law lies at the heart provisions are very rarely implemented in favour of the taxpayer of our constitution.33 and are reached with impunity he evenue officers often act as if such statutory provisions did not exist in our law owever, For the purpose of this article it is intend to eamine the modern where penalties have to e imposed on a taxpayer for tax in default values underlying Dicey’s conception of the rule of law as a rubric the evenue office fails to demonstrate a similar disinterest for assessing the extent to which Sri Lanka’s new income tax statute complies with the standards contemplated by the rule of nother area of concern relates to the making of assessments in law. herefore, I will eamine the etent to which the Inland the context of the statutory time ar t has een previously held Revenue Act, o 24 of 201 and its application in certain udicial y our courts that it is the assessment alone that must e made decisions and departmental practices complies with the core within the prescried period aleit the notice of assessment can e principles of legality, certainty, consistency, accountability, served after the relevant period onseuently the Department of efficiency, due process and access to ustice — desiderata nland evenue has taken up the position that for the purpose of demanded by the rule of law. engaging the time ar, referred to in various fiscal enactments, what is imperative is the date of the assessment and not the date 4. Legality of the notice of assessment or this purpose reliance is placed upon he principle of legality or fidelity to law makes the twin demand nglish decisions on this point owever, it is relevant to note of i obedience to law; and ii that those eercising public power that in ngland the applicale statutory provisions are different must act within the confines of law. owever, in the contet of the from those applicale in Sri Lanka ta regime in Sri Lanka one often observes this principle being breached. he earlier decision of the Supreme ourt of Sri Lanka in amid ariar v ommissioner o ncome a has now een superseded y Our income ta law has very clear and specific provisions on the decision of the Supreme ourt in ernando v smail refunds of taes and interest payable on such refunds34 similar to prior fiscal legislation.3 Past eperience suggests that these

221 Sri Lanka: State of Human Rights: 2018

n the ourt of ppeal this case was identified as sail herefore, the aove decision of the ourt of ppeal, which has Coissioner eneral o nlan Reenue ictor erera , who was one not een varied y the Supreme ourt, indicates that, where a of the udges of the ourt of ppeal that decided on this matter notice of assessment is concerned, the relevant date is the date on refers to the time period involved in sending a notice of which the notice of assessment was posted and not the date on assessment erera stated as follows which the assessment was made

t is neessary tat te resonents soul realise tat te seii he resulting position is that no lawfully valid assessment can e uties iose on te as tese roisions ae een reeate in te made without serving a notice of assessment hus, serving a nlan Reenue At o 28 o i is te a no in notice of assessment is a necessary precondition that must e oeration in te year oenin st Aril 8 so tat te nlan satisfied to confer validity on the assessment he notice of Reenue eartent oul reoer te ta oun to e ue ro ta assessment must e served on the taxpayer prior to the expiry of ayers it eeition as roie in tis la itout eoarisin the time ar te rits o te tate to ollet te reenue ue to it Te la ies an Assessor a erio o years to eaine an inestiate a return ile 5. Consistency and Certainty an assessee ees on ayin te ta instalents on te seiie ates he principle of certainty, as an aspect of the rule of law, demands that the law should e clear and predictale onsistency postulates n rear to te ate o te notie o assessent it as onee tat that like cases must e treated alike te releant ate is te ate o ostin as a notie sent y ost sall e eee to ae een sere on te ay sueein te ay on i it lthough retroactive legislation is ahorrent to the rule of law, it oul ae een reeie in te orinary ourse o usiness n tis has een the practice during the last decade to collect certain taxes ase te notie as aittely oste on 2st Aril lon ater and levies pending the enactment of relevant legislation and to te eetie ate reerre to in setion C naely st ar suseuently validate such unlawful administrative action his n tis ase it annot e onsiere a ali notie uner setion has now unfortunately ecome the norm rather than the exception, C or een a ali notie uner setion as tere as een an asolute nonoliane it te anatory roisions o setion hapter of the nlan Reenue At o 2 o 20 has detailed reuirements regarding selfassessments, default assessments, advance 2 een i te assessent as ae on 00 assessments, amended or additional assessments and making an application for amending a selfassessment See, eg, section of the nlan Reenue Aenent At o 0 o 200 section of the nlan Reenue Aenent At o o 2008 section of te nlan Reenue Aenent At o o 200 section of the nlan Reenue Aenent At o 22 o 20 the several retroactive amendments made to the 80 V ri ana Ta Cases Value Ae Ta At o o 2002 the last eing section of the Value Ae 80 V ri ana Ta Cases , at p Ta Aenent At o o 20

222 Human Rights and Income Tax in Sri Lanka

223 Sri Lanka: State of Human Rights: 2018

giving rise to the development of a culture of impunity and a total penaised since certain aifying payents ere no onger lack of sensitivity where the enactment of fiscal legislation is peritted ithot a ct off period. concerned his is hardly compatile with our professed allegiance to the rule of law dden and a o changes to tax as rest in fisca egisation faing short of the accontaiity standard that is deanded y the good example is the ax ppeals ommission ct, o of re of a. , which was enacted as law on arch t was amended y the ax ppeals ommission mendment ct, o of 7. Efficiency , and the amendment was to retrospectively come into effect ction ased on res hep peope to no the officia position on pril his amendment was further amended y the ax eforehand and is therefore an iperatie for the re of a. ppeals ommission mendment ct, o of , and some t as de to the gross inefficiency incopetence and ac of statutory provisions in it came into effect retrospectively from ipartiaity on the part of the arios oards of eie appointed pril ertain statutory amendments enacted in for the prpose of hearing second tier tax appeas that the retrospectively wiped out the amendments that had previously goernent decided to appoint a stattory ax ppeas een retrospectively introduced in his created a great deal oission. his a ie the crates egg as exceent in parts. of uncertainty and had the effect of eroding taxpayers’ rights. he trac record of the ax ppeas oission has een rather disappointing — aeit far etter than the oard of eie that it 6. Accountability repaced. s an aspect of the rule of law accountaility reuires i a pulished standard against which the legality of official action o egin ith the a stipates that the three eers of the ax could e measured and ii that the pulic is provided with an ppeas oission shod coprise retired dges of the opportunity of assessing whether the enacted rules comply with pree ort or ort of ppea ho hae a ide noedge their legislative purpose and hae gained einence in the fieds of taxation finance and a. his necessariy narros the fied. retired dge of the he nland evenue ct, o of , was enacted without pree ort od say e oer sixty fie years of age hist meaningful consultations and many amendments were effected to a retired dge of the ort of ppea od e oer sixty three the ill prior to its enactment as law eople who had made long years of age. he ct does not contain a snset proision for term investment decisions ased on the prevailing tax law were appointents as far as age is concerned and it is presed that

Ta Aeals Coission At o 2 o 20 as aended. Section of the Ta Aeals Coission Aenent At o o 202 ection of the Ta Aeals Coission At o 2 o 20 as aended. Section of the Ta Aeals Coission Aenent At o 20 o 20 Vie artice of the onstittion.

224 Human Rights and Income Tax in Sri Lanka giving rise to the development of a culture of impunity and a total penaised since certain aifying payents ere no onger lack of sensitivity where the enactment of fiscal legislation is peritted ithot a ct off period. concerned his is hardly compatile with our professed allegiance to the rule of law dden and a o changes to tax as rest in fisca egisation faing short of the accontaiity standard that is deanded y the good example is the ax ppeals ommission ct, o of re of a. , which was enacted as law on arch t was amended y the ax ppeals ommission mendment ct, o of 7. Efficiency , and the amendment was to retrospectively come into effect ction ased on res hep peope to no the officia position on pril his amendment was further amended y the ax eforehand and is therefore an iperatie for the re of a. ppeals ommission mendment ct, o of , and some t as de to the gross inefficiency incopetence and ac of statutory provisions in it came into effect retrospectively from ipartiaity on the part of the arios oards of eie appointed pril ertain statutory amendments enacted in for the prpose of hearing second tier tax appeas that the retrospectively wiped out the amendments that had previously goernent decided to appoint a stattory ax ppeas een retrospectively introduced in his created a great deal oission. his a ie the crates egg as exceent in parts. of uncertainty and had the effect of eroding taxpayers’ rights. he trac record of the ax ppeas oission has een rather disappointing — aeit far etter than the oard of eie that it 6. Accountability repaced. s an aspect of the rule of law accountaility reuires i a pulished standard against which the legality of official action o egin ith the a stipates that the three eers of the ax could e measured and ii that the pulic is provided with an ppeas oission shod coprise retired dges of the opportunity of assessing whether the enacted rules comply with pree ort or ort of ppea ho hae a ide noedge their legislative purpose and hae gained einence in the fieds of taxation finance and a. his necessariy narros the fied. retired dge of the he nland evenue ct, o of , was enacted without pree ort od say e oer sixty fie years of age hist meaningful consultations and many amendments were effected to a retired dge of the ort of ppea od e oer sixty three the ill prior to its enactment as law eople who had made long years of age. he ct does not contain a snset proision for term investment decisions ased on the prevailing tax law were appointents as far as age is concerned and it is presed that

225 Sri Lanka: State of Human Rights: 2018

ruling setting out the Commissioner General of Inland Revenue’s — an idea of the Inland Revenue’s thinking on a matter and the Inland — officials setting out the Department of Inland Revenue’s — — 8. Due Process and Access to Justice — — te nlan Reenue At o 2 o 20 nlan Reenue At o 2 o 20 nlan Reenue At 2 o 20 nlan Reenue At nlan Reenue At o 2 o 20 Ta Aeals Coission At o 2 o 20 nlan Reenue At

226 Human Rights and Income Tax in Sri Lanka

227 Sri Lanka: State of Human Rights: 2018

ruling given the Commissioner General of Inland Revenue dependent upon the good sense of the oissioner enera can e challenged a of a rit of certiorari and ill necessaril rather than purey statutory rights that can e deanded as a atter e suect to the fundamental rights urisdiction of the upreme of a oeer the ct does proide that here eidence is Court in appropriate cases heard y the oissioner enera a record of such eidence ust e aintained he ta appeal structure under the ne la leaves much to e desired he la envisages an escalating appeal process ithout nce adinistratie reie of a decision is sought the ensuring that a taxpayer’s due process rights are safeguarded at oissioner enera is expected to coney his her decision to each stage of adudication he ct contains a rudimentar ouster the aggrieed taxpayer ithin ninety days he taxpayer is then clause hich provides that ecept as provided in the ct no gien an opportunity to appea to the ax ppeas oission decision relating to the pament of ta can e disputed efore the oeer the ct aes it ipicit that an appea to the ax a ppeals Commission or an other proceedings he ppeas oission can ony e ade against an assessent provisions of the ct ill override an other ritten la if there is ppeas to the ax ppeas oission are goerned y a an inconsistenc eteen the ct and such ritten la separate enactent he chedue and to the Ta Aeals Coission At o 2 o 20 as aended enuerates the tapaer ho is dissatisfied ith an assessment or an other statutes in reation to hich a deterination ay hae een ade decision ma reuest the Commissioner General to y the oissioner enera of nand eenue or the irector administrativel revie the decision ithin thirt das from the enera of ustos and fro hich an appea to the oission date of notification of the decision hilst under the previous la can e ade he nand eenue ct o of is not isted a tapaer could onl appeal against an assessment under the ne in the chedues to the ax ppeas oission ct ut the la it is possile to seek administrative revie of an assessment oission is conferred urisdiction to hear and deterine a case or other decision of the Inland Revenue ith hich one is y irtue of the expicit proisions contained in the nlan Reenue dissatisfied It is unfortunate that the ct does not make it At o 2 o 20 oeer the nlan Reenue At o 2 o 20 mandator that the person seeking administrative revie must e aes no reference to the ax ppeas oission ct and does granted a hearing here does not appear to e an entitlement to not proide a definition of the ter ax ppeas oission t e represented or to make oral or ritten sumissions at a hearing is up to the taxpayer to assue that the ter refers to the ax hese appear to e a grace and favour privileges hich are

ection of the nlan Reenue At o of ection of the nlan Reenue At o of ection of the nlan Reenue At o 2 o 20 ection of the nlan Reenue At o of ection of the nlan Reenue At o 2 o 20 ection of the nlan Reenue At o of ection and of the nlan Reenue At o 2 o 20 ide section and of te nlan Reenue At o of Ta Aeals Coission At o 2 o 20 as aended

228 Human Rights and Income Tax in Sri Lanka

229 Sri Lanka: State of Human Rights: 2018

ppeas oission constituted under the ax ppeas days nder the ax ppeals oission ct an appeal can only oission ct o of as aended e ade to the ourt of ppeal y way of a stated case on a uestion of law arising for the opinion of the court he case nder the ax ppeas oission ct it is ony possie to ae ust include the deterination of the ax ppeals oission an appea to the oission if there is a deterination fro the t is difficult to iagine how a case can e prepared or uestions oissioner enera of nand eenue in reation to the of law forulated if there is no decision fro either the enuerated statutes t is not possie to appea hen there is no oissioner eneral of nland eenue or the ax ppeals deterination aeit the nand eenue ct o of oission in respect of an appeal against an assessent he aes specific proision for sae here is aso the ogistica ct iposes no sanction on the epartent of nland eenue or difficuty of haing to presue that the decision as against the the ax ppeals oission for refusing to perfor its statutory taxpayer and to isuaise grounds of appea he taxpayer ho duty on tie urtherore the oissioner eneral of nland appeas to the ax ppeas oission aso has to ae a non eenue is peritted a right of appeal een if he she has ade no refundae payent of of the tax in dispute or ae a decision in the first place and the ax ppeals oission has refundae payent or proide a an guarantee for of the ruled against hi her or the ax ppeals oission has ade tax in dispute one of these costs need e incurred y the no decision at all taxpayer if the adinistratie reie function had een propery perfored in the first pace reiousy the oissioner enera he present law appears to reward the nland eenue for of nand eenue as gien a period of to years to ae a tardiness and has the effect of rapping the taxpayer on his nucles deterination reating to an appea and if he she faied to do so for inoing the ppellant proisions of the ct he ct aes the appea as deeed to hae een aoed his statutory no reference to a right to appeal to the upree ourt fro the sanction was salutary since it safeguarded a taxpayer’s right to due decision of the ourt of ppeal y way of pecial eae to ppeal process oeer the ne ct punishes the taxpayer for t could e argued that this is a right conferred under the ureaucratic deay and copes hi herit to ear the cost of onstitution and that there is no need to ae specific reference escaating an appea ithout haing the enefit of a statutory to this right in a statute oweer preious nland eenue adudication

nder the ne ct either party is peritted to appea to the ourt of ppea een if an appea has een ade to the ax ppeas oission and no response has een receied ithin ninety ide section of the nlan Reenue At o 2 o 20 ection of the Ta Aeals Coission At o 2 o 20 as aended ide section of the nlan Reenue At o 0 o 200 as aended ide rticle of the onstitution

230 Human Rights and Income Tax in Sri Lanka

231 Sri Lanka: State of Human Rights: 2018

statutes and the ax ppeals oission ct ade explicit e ustified in a society coitted to the rule of law and principles reference to this right of good goernance

he cuulatie effect of such cascading sanctions is to increase 9. Interest, Penalties and Charges the possiility of settling a tax dispute y haing recourse to riery he new ct aes proision to pay interest to taxpayers where or corruption t is perhaps in this context that for the first tie a there is a refundale aount he interest rate will e one half ery stringent penalty regie has een introduced for tax officials per cent per onth copounded his is less than what a for failing to carry out the proisions of the ct y taing a coercial an pays a depositor oweer otaining a refund payent reward or other enefit t is a disgrace for the eenue fro the nland eenue will e ain to finding the proerial pot fficers of the state and an affront to their dignity for such a of gold at the end of the rainow proision to e specifically included in the eenue tatute he riery and corruption laws of ri ana are ore than adeuate here there has een an underpayent of incoe tax in general to deal with this issue oweer the incorporation of this the interest charged will e three ties what a taxpayer will receie proision is an explicit statutory acnowledgeent of riery and as interest for a refund one and a half per cent per onth corruption at the epartent of nland eenue t is also an copounded — his eans that a taxpayer who has een acnowledgent of the excessiely oppressie character of the assessed and aes an appeal to the oissioner eneral of statute nland eenue – which is not heard and an appeal to the ax ppeals oission – which is also not heard – and then appeals he ct also aes it an offence to ipede tax adinistration to the ourt of ppeal has already incurred interest at the rate of his is not an unusual proision as preious reenue statutes had per onth copounded for a iniu period of six siilar proisions onths hereafter when the appeal is pending in the ourt of ppeal or upree ourt the taxpayer continues to incur an his oerall ealuation of the ppellate proisions of the new ct interest cost of per onth copounded shows that it is draconian leaes uch to e desired and cannot n such a context when an assessent is ade it is cheaper for the

ee eg section of the nlan Reenue At o 0 o 200 as taxpayer to otain a an loan and pay the tax ecause the an aended will charge a lower rate of interest than the aount payale under rticle of the Ta Aeals Coission At o 2 o 20 as aended the new nland eenue ct f the ourt ultiately holds in ection of the nlan Reenue At o 2 o 20 ection of the nlan Reenue At o 2 o 20 ee eg hapter of the nlan Reenue At o 0 o 200 as ection of the nlan Reenue At o 2 o 20 aended ection of the nlan Reenue At o 2 o 20

232 Human Rights and Income Tax in Sri Lanka statutes and the ax ppeals oission ct ade explicit e ustified in a society coitted to the rule of law and principles reference to this right of good goernance

233 Sri Lanka: State of Human Rights: 2018

taation is necessarily a fall out of economic growth and if there is national prosperity ta revenues will automatically grow. he theory is that a large tree with overarching branches and eposure to adeuate sunlight gives a bountiful harvest in comparison to a small tree which has had its branches chopped off. urthermore ta legislation must be consistent with the imperatives demanded by the rule of law if ri ana is to continue to be recognised as a democratic state.

10. Conclusion

ton Churchill once said “I contend that for a nation trying to lift himself up by the handle.” My own view is that

nlan Reenue At o 2 o 20 – nlan Reenue At o 2 o 20 nlan Reenue At o 2 o 20 te nlan Reenue At o 2 o 20

234 Human Rights and Income Tax in Sri Lanka

10. Conclusion

ton Churchill once said “I contend that for a nation trying to lift himself up by the handle.” My own view is that

nlan Reenue At o 2 o 20 – nlan Reenue At o 2 o 20 nlan Reenue At o 2 o 20 te nlan Reenue At o 2 o 20

235 SCHEDULE I

UN Conventions on Human Rights Environmental treaties & International Conventions on Terrorism signed, ratified or acceded to by Sri Lanka as at 31st December 2017

Additional Protocol to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled Protocol on Blinding Laser Weapons)

Acceded on 24 September 2004

Cartagena Protocol on Bio Safety

Acceded on 26 July 2004

UN Convention on Biological Diversity

Acceded on 23 March 1994

UN Convention against Corruption

Acceded on 11 May 2004

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Acceded on 3 January 1994

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

Acceded on 15 April 1958

SCHEDULE I

UN Conventions on Human Rights Environmental treaties & International Conventions on Terrorism signed, ratified or acceded to by Sri Lanka as at 31st December 2017

Acceded on 24 September 2004

Cartagena Protocol on Bio Safety

Acceded on 26 July 2004

UN Convention on Biological Diversity

Acceded on 23 March 1994

UN Convention against Corruption

Acceded on 11 May 2004

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Acceded on 3 January 1994

Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others

Acceded on 15 April 1958

237 Sri Lanka: State of Human Rights: 2018

Convention on the Elimination of All Forms of Discrimination against Women International Convention against the Taking of Hostages (CEDAW) Acceded on 8 September 2000 Ratified on 5 October 1981 International Convention for the Suppression of Acts of Nuclear Terrorism Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Acceded on 14 September 2005 Effects (with Protocols I,II, and III) International Convention for the Suppression of Financing of Terrorism Acceded on 24 September 2004 Ratified on 8 September 2000 Convention on the Prevention and Punishment of Crimes against Internationally International Convention on the Elimination of All Forms of Racial Discrimination Protected Persons, including Diplomatic Agents (ICERD) Acceded on 27 February 1991 Acceded on 18 February 1982 Convention on the Prevention and Punishment of the Crime of Genocide International Convention on the Protection of All Migrant Workers and Members of Acceded on 12 October 1950 their Families

Convention on the Rights of Persons with Disabilities Acceded on 11 March 1996

Ratified on 8th February 2016 International Convention for the Protection of All Persons from Enforced Disappearance Convention on International Trade in Endangered Species of Wild Fauna and Flora Ratified on May 2016 Acceded on 4th May 1979 International Covenant on Civil and Political Rights (ICCPR) Convention on the Rights of the Child (CRC) Acceded on 11 June 1980 Ratified on 12 July 1991 International Covenant on Economic, Social and Cultural Rights (ICESCR) Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation Acceded on 11 June 1980

Acceded on 6th September 2000 International Covenant on the Suppression and Punishment of the Crime of Apartheid

Acceded on 18th February 1982

238 Schedule I

Convention on the Rights of Persons with Disabilities Acceded on 11 March 1996

Acceded on 6th September 2000 International Covenant on the Suppression and Punishment of the Crime of Apartheid

Acceded on 18th February 1982

239 Sri Lanka: State of Human Rights: 2018

Kyoto Protocol to the Framework Convention on Climate Change Acceded on 3 September 2002

Optional Protocol 1 to the International Covenant on Civil and Political Rights Acceded on 24 September 2004 (ICCPR) Acceded on 3 October 1997 – Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Signed on 15 December 2000

Ratified on 15 January 2003 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict Acceded on 24 September 2004 Ratified on 6 September 2000 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography Acceded on 15 October 1990

Ratified on 22 October 2006

Optional Protocol to the Convention against Torture (OPCAT) Signed on 15 December 2000

Acceded on 05 December 2017

Paris Agreement on Climate Change

Ratified on 21 Sep 2016 Acceded 19 July 1994

Protocol against the Smuggling of Migrants by Land, Sea and Air – Supplementing the United Nations Convention against Transnational Organised Crime Acceded on 4 May 2006 Signed on 15 December 2000 Acceded 15 December 1989

240 Schedule I

Kyoto Protocol to the Framework Convention on Climate Change Acceded on 3 September 2002

Ratified on 22 October 2006

Optional Protocol to the Convention against Torture (OPCAT) Signed on 15 December 2000

Acceded on 05 December 2017

Paris Agreement on Climate Change

Ratified on 21 Sep 2016 Acceded 19 July 1994

241 SCHEDULE II

ILO Conventions Ratified by Sri Lanka as at 31 December 2017

No Convention Name Ratified Present Status Date

242 Schedule II

Workmen’s Compensation

243 Sri Lanka: State of Human Rights: 2018

C it Work o on ersons nstr Conention eise

C rotetion o Wae Conention

C rearin mpoment enies Conention eise

C its to ranise an Coetie arainin Conention

C inimm Wae iin ainer ritre Conention

C a emneration Conention

C aternit rotetion Conention eise

C oition o ore aor Conention

C Week est Commere an ies Conention

C Seafarers’ Identity Documents Conention

244 Schedule II

onditions of moyment of antation orers onention

Discrimination moyment and ccuation onention

adiation rotection onention

ina rtices eision onention

inimum ae iin onention

Worker’s Representatives onention

inimum e for dmission to moyment

riartite onsutations to romote te Imementation of I onention

aour Statistics onention

245 SCHEDULE III SCHEDULE IV

Humanitarian Law Conventions Ratified by Sri Lanka as at 31st December 2017 Some Human Rights and Humanitarian Instruments NOT Ratified by Sri Lanka as at 31st December 2017 eneva onvention or te eioration o te onitions o te Wone an ik in te re ores in te ie onvention on te onppiaiit o tattor iitations to War ries an Ratified on 28 February 1959 ries aainst anit 26 November 1968 (date of adoption), 11 November 1970 (entered into force)

eneva onvention or te eioration o te onitions o te Wone ik an onvention on te oitia Rits o Woen 20 December 1952 (date of ipreke eers o te re ores at ea adoption), 7 July 1954 (entered into force)

Ratified on 28 February 1959 onvention Reatin to te tats o Reees July 1951 (date of adoption), 22 April 1954 (entered into force)

eneva onvention Reatin to te rotetion o iviian ersons in ie o War ors o Work nstr onvention – 1919 (date of adoption), 1921 (entered into force) Ratified on 28 February 1959

onvention onernin poent rootion an rotetion aainst nepoent – 1988 (date of adoption), 1991 (entered into force) eneva onvention Reatin to te reatent o risoners o War

Ratified on 28 February 1959 onvention o onernin ini tanars o oia erit 28 June, 1952 (date of adoption), 27 April 1955 (entered into force)

onvention o onernin poent oi (date of adoption), 1966 (entered into force)

onvention o onernin ranisations o Rra Workers an teir Roe in onoi an oia eveopent – 1975 (date of adoption), 1977 (entered into force)

246 SCHEDULE III SCHEDULE IV

eneva onvention or te eioration o te onitions o te Wone ik an onvention on te oitia Rits o Woen 20 December 1952 (date of ipreke eers o te re ores at ea adoption), 7 July 1954 (entered into force)

Ratified on 28 February 1959 onvention Reatin to te tats o Reees July 1951 (date of adoption), 22 April 1954 (entered into force)

eneva onvention Reatin to te rotetion o iviian ersons in ie o War ors o Work nstr onvention – 1919 (date of adoption), 1921 (entered into force) Ratified on 28 February 1959

onvention onernin poent rootion an rotetion aainst nepoent – 1988 (date of adoption), 1991 (entered into force) eneva onvention Reatin to te reatent o risoners o War

Ratified on 28 February 1959 onvention o onernin ini tanars o oia erit 28 June, 1952 (date of adoption), 27 April 1955 (entered into force)

onvention o onernin poent oi (date of adoption), 1966 (entered into force)

onvention o onernin ranisations o Rra Workers an teir Roe in onoi an oia eveopent – 1975 (date of adoption), 1977 (entered into force)

247 Sri Lanka: State of Human Rights: 2018

– –

–

248 Schedule IV

– –

–

249 SCHEDULE V Fundamental Rights Cases Decided During the Year 2017 referred to in the report

250 Schedule V

SCHEDULE V Fundamental Rights Cases Decided During the Year 2017 referred to in the report

251 Sri Lanka: State of Human Rights: 2018

BIBLIOGRAPHY Books, Chapters

Constitutional ustice A ieral eory o te ule o a

ar an eace Are truggle an eace Eorts o ieration igers

olitics o oreign Ai in ri ana rooting arets an uorting eace e ule o a Engineering Consultancy Bureau Engineers’ Association v. Central eology an te Constitution Essays on Constitutional urisruence eaing te irlin Etnic Conlict an Etnic olitics in ri ana ri ana Etnic Conlict anageent an esolution An ntrouction to te tuy o te a o te Constitution ociology o or Continuity an Cange in ai an nai or

oars igts Consciousness A tuy o te Eansion o te rontiers o unaental igts urisruence in ri ana

y Belly is ite

Etnicity versus ationalis evolution iscourse in ri ana

252 BIBLIOGRAPHY Books, Chapters

Constitutional ustice A ieral eory o te ule o a

ar an eace Are truggle an eace Eorts o ieration igers

oars igts Consciousness A tuy o te Eansion o te rontiers o unaental igts urisruence in ri ana

y Belly is ite

Etnicity versus ationalis evolution iscourse in ri ana

253 Sri Lanka: State of Human Rights: 2018

Eerging rens in ulic a rishna anaran India’s Role in Sri Lanka’s Conflict arga onograh oloo arga nstitute

egotiating it igers E A ie ro arin arry ed I International Tax lossary sterda th te econ o ed

e Cronic an te Entrence Etnoreligious iolence oganathan etheshwaran Sri Lanka Lost ortnities: Past ttemts at in ri ana Resolving Ethnic Conflict oloo niversity of oloo

Human Rights and Development: The World Bank’s Need for unasinghe idura Reimagining ‘The Worker’ and Resistance in the Neo a Consistent Aroac Lieral Era oloo aw oiety Trust

a an Ainistration uni Pangs of Proximity: India and Sri Lanka’s Ethnic Crisis ew elhi

A Brie istory o eoieralis urhy ia and Thoas agel The yth of wnershi Taxes and stice ford ford niversity ress

eolieralis an estoration o Class oer oi oert narchy State and toia ew or asi oos ulishing o oson stice and dministrative Law ondon aillan e oa to ero oany iited

Jeffrey Jowell “The rule of law and its underlying values” in Jeffrey uesinghe uar ed Negotiating Peace in Sri Lanka: ailres and Lessons e Canging Constitution Two olues oloo oundation for oeistene – alter ar To End a Civil War: Norway’s Peace Engagement in Sri Lanka e a an te Constitution ondon urst harvananda ndamental Rights in Sri Lanka: Commentary oloo Counalis an anguage in te olitics o Ceylon Taanaha rian n the Rle of Law: istory Politics Theory aridge ostcolonial nsecurities nia ri ana an te uestion aridge niversity ress o ationoo

254 Bibliography

Eerging rens in ulic a rishna anaran India’s Role in Sri Lanka’s Conflict arga onograh oloo arga nstitute

egotiating it igers E A ie ro arin arry ed I International Tax lossary sterda th te econ o ed

e Cronic an te Entrence Etnoreligious iolence oganathan etheshwaran Sri Lanka Lost ortnities: Past ttemts at in ri ana Resolving Ethnic Conflict oloo niversity of oloo

Human Rights and Development: The World Bank’s Need for unasinghe idura Reimagining ‘The Worker’ and Resistance in the Neo a Consistent Aroac Lieral Era oloo aw oiety Trust

a an Ainistration uni Pangs of Proximity: India and Sri Lanka’s Ethnic Crisis ew elhi

A Brie istory o eoieralis urhy ia and Thoas agel The yth of wnershi Taxes and stice ford ford niversity ress

eolieralis an estoration o Class oer oi oert narchy State and toia ew or asi oos ulishing o oson stice and dministrative Law ondon aillan e oa to ero oany iited

255 Sri Lanka: State of Human Rights: 2018

The Critical Criminology Comanion eds Thalia nthony hris unneen JOURNALS awins ress ew outh ales ustralia Gomes, Virginia Bras “Beyond civil and political rights: Economic, Uyangoda, Jayadeva, “GovernmentTT egotiation ttet of Social and cultural Rights are Human Rights Too,” Interview by Vidura through Norwegian Facilitation: Context, Complexities and Lessons,” in Prabath Munasinghe, LST Review Vol. Issue . Colombo: Law uesinghe uar ed Negotiating Peace in Sri Lanka: ailres and Society Trust, 2018, 22. Lessons Two olues oloo oundation for oeistene Munasinghe, Vidura. “Waiting for Mahinda Mahaththaya: 2018 Local Uyangoda, Jayadeva, “Travails of State Reform in the Context of Government Election.” in LST Review Vol. 2 Issue . Colombo: Law Protracted Civil War in Sri Lanka,’ in Kristan Stokke and Jayadeva Society Trust, 2018, 101. yangoda eds Lieral Peace in estion: Politics of State and arket Reform in Sri Lanka ondon nthe ress Phillip Alston. “The Populist Challenge to Human Rights.” in ornal of man Rights Practice, Volume , Issue 1, 201: 1. ile J Constittionalism and the Searation of Powers ndianaolis ierty und nd ed Roberts, Michael. “Ethnic Conflict in Sri Lanka and Sinhalese Perspectives: Barriers to Accommodation,” odern sian Stdies, 18, iraaratne Jayaathy ndamental Rights in Sri Lanka anniitiya Vol.12, . taford ae nd ed Welikala, Asanga, “Ethnocracy or Republic? Paradigms for riggins oward Ceylon: ilemmas of a New Nation rineton J Constitutional Reform and Renewal in Sri Lanka,” The Soth sianist, rineton niversity ress 201, :1. 12.

Yiftachel, Oren, 2000, “ ‘Ethnocracy’ and its Discontents: Minorities, Protests and the Israeili Polity,” Critical Inuiry, 2: , 2.

256 Bibliography

Yiftachel, Oren, 2000, “ ‘Ethnocracy’ and its Discontents: Minorities, Protests and the Israeili Polity,” Critical Inuiry, 2: , 2.

257 Sri Lanka: State of Human Rights: 2018

United Nations Reports, Resolutions, Conventions, Concluding serations, para 73, EC.12AC, Committee on Statements and Documents Economic, Social and Cultural Rights, Concluding serations on the ifth Periodic Report of Sri ana, August 2017. A oint Civil Society Shadow Report to the nited ations Committee on Economic Social and Cultural Rights”, April 2017, page 1112, eclaration on the Right to eelopment. accessed on ecemer , https:tbinternet.ohchr.orgTreatiesCESCRShared20Documents 201, http:.un.orgdocumentsgares1a1r12.htm LAITCESCRCSSLA2228E.pdf ull Statement en Emmerson, N Special Rapporteur on human CESCR General Comment No. 3: The Nature of States Parties’ Rights and Counterterrorism, at the conclusion of his official isit, 1 Obligations Art. 2, Para. 1, of the Covenant, December 10, available ul 2017, http:l.one.un.orgnesfullstatementen at http:www.refworld.orgpdfid888e10.pdf, at paras and . emmersonunspecialrapporteuronhumanrightsandcounter terrorismattheconclusionofhisofficialisit Civil Society Shadow Report to the Committee on the Protection of the Rights of All Migrant Workers and Members of their amilies, August 201, available at High Commissioner on Human Rights, “Report of the Office of the https:www.google.comurl?satrctesrcssourceweb United Nations High Commissioner for Human Rights on Sri Lanka”, cd8ved0ahEwIPhHcAhT0HcceCv0ghnMAc e 2017, ARC320, urlhttpsA22tbinternet.ohchr.org2Treaties2CMW2 https:.ohchr.orgenhrodieshrcregularsessions Shared220Documents2LA2ITCMWGOLA2 ...ahrc320en.doc , page , para 32 81E.docusgAOvVawHGhHAotCEWRRmvn uman eelopment Report 1, nited Nations eelopment Concluding Observations on the th Periodic Report of Sri Lanka: Programme NP ford: ford niersit Press, 1, 22. Committee on Economic, Social and Cultural Rights EC.12LACO, Geneva: , Aug. 201, Human Rights Council, Resolution on ‘Promoting reconciliation, https:tbinternet.ohchr.orglayoutstreatybodyeternalDownload.a accountability and human rights in Sri Lanka’, A/HRC/RES/30/1, sp?symbolnoEC.12LACOLangEn at p.2, para 10 adopted in ctoer 201 aailale at https:undocs.orgENARCRES301 Concluding Observations on the Eighth Periodic Report of Sri Lanka CEDAWCLACO8 March 201 para 11. Report of the ffice of the nited Nations igh Commissioner for uman Rights on Sri ana, ffice of the igh Commissioner for Concluding Observations on the Eighth Periodic Report of Sri Lanka, uman Rights CR, ARC320 Committee on Elimination of All forms of Discrimination against Women, CEDAWCLA8, March 201 Report of the Special Rapporteur on inorit ssues on her ission to Sri ana ARC33Add.3 31 anuar 2017 para 13.

258 Bibliography

259 Sri Lanka: State of Human Rights: 2018

Report of the Special Rapporteur on the ndependence of udges and Newspapers and News Websites Layers on her ission to Sri Lanka, Human Rights Council, 3 une 01, A/HRC/3/31/Add1 at para “Attack on Hambanthota port workers: state minister rejects allegations,” Sundayobserver.lk, accessed October 6, 2018, http://www.sundayobserver.lk/2016/12/11/news/attackhambantota Report of the Special Rapporteur on orture and other Cruel, nhuman portworkersstateministerrejectsallegations or egrading reatment or Punishment on his ission to Sri Lanka A/HRC/3//Add ecember 01 para “Counter Terrorism Bill Challenged in SC”, https://pressreader.com, accessed November 11, 2018, https://www.pressreader.com/sri Report of the orking roup on the Uniersal Periodic Reie on Sri lanka/sundaytimessrilanka/20181021/28167170602 Lanka, Human Rights Council 3th session ecember 01, A/HRC/3/1 “Enjoying order against SLT trade union protests”, accessed October 18, 2018, Resolution adopted by eneral Assembly on September 01, http://www.sundayobserver.lk/2017/01/1/business/enjoiningorder accessed on ecember , 01 againstslttradeunionprotestspage1 http//unorg/ga/search/iedocaspsymbolA/RES/0/1 LangE “Hambanthota Port employees continue strike action,” Newsfirst.lk, accessed October 6, 2018, ransforming our orld the 030 Agenda for Sustainable https://www.newsfirst.lk/2016/12/0/hambantotaportemployees eelopment Sustainable eelopment oals Resolution 0/1 of the continuestrikeaction/ United Nations eneral Assembly “Sri Lanka Navy breaks up protests at Hambanthota Port,” accessed he Rio eclaration on Enironment and eelopment, accessed on November 16, 2018, ecember , 01, https://worldmaritimenews.com/archives/208/srilankanavy http//unescoorg/education/pdf/ROEP breaksupprotestsathambantotaport/

“Sri Lanka Telecom files a writ petition against Police inaction over manpower employees”, accessed October 20, 2018, http://www.dailynews.lk/2017/0/2/laworder/111/srilanka telecomfileswritpetitionagainstpoliceinactionover.

“What happened in Hambanthota,” Roar.media, accessed October 7, 2018, https://roar.media/english/life/reports/whathappenedin magampura /

260 Bibliography

“What happened in Hambanthota,” Roar.media, accessed October 7, 2018, https://roar.media/english/life/reports/whathappenedin magampura /

261 Sri Lanka: State of Human Rights: 2018

“What happened in Hambanthota”. Accessed October 07, 2018. Laws Roarmedia. https://www.roar.media/english/life/reports/what happenedinmagampura / agrants rdinance No of Right to Information ct No of Coomaraswamy, Radhika. “International Human Rights: Dispelling the Inland Revene ct No of Myths,” https://groundviews.org, accessed November 15, 2018. https://groundviews.org/201/08/28/internationalhumanrights Local thorities Elections mendment ct No of dispellingthemythsbyradhikacoomaraswamy / Citienshi mendment ct No of Harvey, avid. Neoliberalism and Restoration of class power https://gsnas.files.wordpress.com/2007/10/harvey08060.pdf.

Lee, Timothy B. “Brexit: the 7 most important arguments for Britain to leave the Eu,”www.vox.com, accessed November 15, 2018, https://www.vo.com/2016/6/22/112106/breitarguments.

Perera, Anarkalee. “Unpaid Care Work: The Overlooked Barrier in Women’s Economic Empowerment”, 15 September 2017, http://groundviews.org/2017/0/1/unpaidcareworkthe overlookedbarrierinwomenseconomicempowerment/

Memorial Lectures

R K W Goonesekere, “Arm of the Law’ oration delivered on the occasion of the 60th Anniversary of the aculty of Law, niversity of Colombo on 2 October 2008

ais usthapha, “Fundamental Rights – Changing udicial Attitudes?” Kamalasabayson Memorial Oration 2011 delivered on 23 September 2011

Param Cumaraswamy, “An Independent Judiciary: Beacon of Constitutionalim in a Democracy,” 1th udley Senanayake emorial Oration delivered on 1 October 2011.

262 Bibliography

Lee, Timothy B. “Brexit: the 7 most important arguments for Britain to leave the Eu,”www.vox.com, accessed November 15, 2018, https://www.vo.com/2016/6/22/112106/breitarguments.

Memorial Lectures

R K W Goonesekere, “Arm of the Law’ oration delivered on the occasion of the 60th Anniversary of the aculty of Law, niversity of Colombo on 2 October 2008

ais usthapha, “Fundamental Rights – Changing udicial Attitudes?” Kamalasabayson Memorial Oration 2011 delivered on 23 September 2011

Param Cumaraswamy, “An Independent Judiciary: Beacon of Constitutionalim in a Democracy,” 1th udley Senanayake emorial Oration delivered on 1 October 2011.

263

INDEX A abuse of power 98, 123, 219 accountability 26, 33, 34, 35, 48, 51, 90, 97, 98, 99, 103, 104, 105, 107, 150, 151, 196, 206, 217, 220, 224, 225, 259 access to justice 172, 217, 220, 226 administrative review 228, 229, 230 administrative review function 270 agrochemicals 160 anti-labour 185 arbitrary executive action 219 arbitration 192, 194 armed forces 10, 12, 24, 40, 91, 94, 176, 179, 246 armed struggle 71, 72, 74, 75, 253 Associated Battery Manufactures of 183 Ratmalana Attorney General 09, 13, 94, 96, 118, 121, 124, 125, 129, 149, 250, 252 August 1995 proposals 78 austerity measures 158 authoritarianism 27, 60, 61, 181, 182, 195, 199, 206

B Brexit 182, 262

C capital accumulation 195 ceasefire agreement 24, 25, 43, 80, 81, 82, 84, 94 CEDAW 29, 111, 112, 114, 142, 143, 151, 155, 156, 157, 158, 159, 162, 166, 169, 171, 172, 173, 174, 175, 179, 238, 240, 258 certificates of absence 101, 178 CESCR 114, 118, 144, 147, 148, 153, 155, 156, 157, 158, 159, 160, 162, 164, 165, 166, 167, 169, 170, 172, 173, 175, 258 child abuse 175 child labour 175, 202 child marriage 175 children with disabilities 162

265 Index

children’s rights 07, 16, 175 Citizenship Act No. 18 of 1948, 164 civil and political rights 29, 111, 140, 142, 155, 201, 219, 239, 240, 248, 257 civil society 18, 26, 30, 33, 37, 42, 46, 49, 52, 65, 95, 98, 100, 120, 142, 145, 146, 156, 157, 162, 164, 165, 168, 170, 174, 194, 258 civil war 14, 61, 67, 68, 69, 70, 71, 73, 76, 80, 85, 86, 87, 89, 90, 94, 255, 256 coalition for good governance. 98 cold war 140 Commissioner General of Inland Revenue 222, 227, 228, 229, 230, 231, 233 Committee against Torture (CAT) 147 compulsory arbitration 192, 194 compulsory education 162 confederalism 82 confidence building measures 78 constitutional reform 27, 28, 29, 57, 64, 79, 99, 102, 105, 106, 150, 151, 152, 257 constitutional settlement 74 contempt of court 171, 210 counter terrorism bill 198, 199, 261

D date of the notice of assessment 221, 222 death penalty 141, 145 debt dependency 157, 158 default tax regime 234 democracy 26, 63, 67, 98, 105, 195, 196, 206, 215, 220, 262 Department of Inland Revenue 213, 221, 227, 231, 232 deregulation 185, 195, 206 deregulation of the labour market 185 development 29, 38, 46, 48, 53, 61, 82, 85, 88, 89, 90, 91, 92, 93, 127, 128, 133, 148, 151, 157, 158, 167, 168, 169, 173, 174, 183, 184, 198, 199, 200, 201, 207, 215, 224, 247, 254, 259, 260

266 Sri Lanka: State of Human Rights: 2018 devolution 34, 46, 47, 73, 74, 75, 78, 79, 85, 89, 91, 105, 253 Digana (Kandy) in February 2018 171 Directive principles of state policy 114, 126, 140, 150 disappearances, 04, 06, 08, 34, 96 disclosure of information 210, 212 discriminatory laws 140, 141, 165, 173 domestic workers 166 due process 12, 35, 116, 157, 217, 220, 226, 228, 230

E economic and infrastructure development 91, 92 economic and social rights 61, 139, 158, 163, 167, 180, 201, 206 economic nationalism 182, 196 economic rights 28, 64, 155, 156, 165, 202, 206 economic security 201 economic, social and cultural rights 15, 28, 45, 62, 112, 114, 140, 141, 142, 144, 145, 147, 148, 150, 152, 155, 157, 162, 165, 170, 201, 202, 239, 257, 258, 259 education, 06, 15, 117, 163, 165 employer-employee relations 184 employer-employee relationship model 184 enforced disappearance 04, 11, 12, 13, 34, 48, 51, 143, 144, 147, 171, 178, 239 environmental, 200 ethnic civil war 71 ethnic conflict 01, 05, 07, 08, 15, 27, 47, 64, 67, 70, 72, 73, 74, 76, 81, 87, 91, 94, 253, 255, 257 ethnic majoritarian policies, 73 ethnic minority demands 68 ethnic minority grievances 75 ethnic reconciliation 94, 98 ethnic riots of July 1983 72 ethnic violence 71 ethnocracy 69, 257 extra judicial executions 175

267 Index

F fair hearing 226 Family Background Report 167, 168, 169

farmers 43, 203 female headed households 32, 157, 158 final phase of Sri Lana’s civil war 86 finance companies 158 fiscal legislation 220, 224, 225 fiscal revenue 156 fisheries sector 159 fishermen 38, 203 fixed-term labour 185 flexible labour 61, 195 formal labour 166 former combatants 18, 166 free trade 185 freedom from torture 111, 175 freedom of movement 169 freedom of religion 170 fundamental right 04, 12, 13, 27, 28, 29, 31, 43, 52, 54, 55, 57, 58, 59, 60, 109, 110, 111, 112, 113, 114, 115, 116, 117, 120, 121, 122, 123, 126, 128, 129, 130, 131, 132, 133, 134, 136, 137, 139, 161, 163, 173, 209, 210, 218, 219, 228, 250, 253, 255, 256, 262 fundamental rights jurisdiction 128, 134, 219, 228

G garment sector 166 gender identity 28, 163, 164, 165 gender-based violence 20, 172 government institutions 63

H hardline Sinhala nationalism 93 hate speech 170, 171

268 Sri Lanka: State of Human Rights: 2018 health services 15, 160 healthcare 160, 165 Human Rights Commission of Sri Lanka 60, 94, 148, 152 (HRCSL) Human Rights Council 11, 18, 32, 34, 35, 36, 49, 52, 90, 96, 97, 100, 103, 105, 112, 146, 149, 150, 151, 153, 154, 155, 161, 176, 259, 260 human rights protectors 182 human security 199, 200, 202, 206 humanitarian issues 68, hybrid court 103, 178

I ILO Indigenous and Tribal Peoples 170 Convention, 1989 (No. 169) independence of the judiciary 98, 112, 136, 137, 149, 153, 180 Indian government 73, 74, 76 indigenous people 170 individual’s right to privacy 212 Indo-Lanka Accord of 1987 89 informal economy 166, 167 informal work 166 Inland Revenue Act, No 24 of 2017 207, 209, 213, 220, 221, 223, 224, 227, 228, 229, 230, 231, 232, 233, 234, 263 insurgency 11, 75, 76, 89, 91, 93 inter-ethnic reconciliation 94, 98 Interim Self-Governing Authority (ISGA) 82 Internally Displaced Persons (IDPs) 15, 159 International Convention for the Protection 13, 48, 51, 143, 147, 178, 239 of All Persons from Enforced Disappearance International Covenant on Civil and Political 111, 140, 239, 240, 248 Rights (ICCPR) international human rights 01, 04, 12, 13, 43, 56, 62, 64, 90, 111, 133, 140, 141, 142, 143, 146, 148, 149, 152, 155, 161, 174, 182, 183, 262 international humanitarian law 97, 102 international treaty bodies 155 internationally mediated negotiations 88

269 Index

intersectional discrimination 155, 162, 166, 173 IPKF 77, 88

J Janatha Vimukthi Peramuna (JVP) 05, 76 job security 186, 187, 190 judicial interpretation 60, 114, 150, 161 judiciary 28, 54, 98, 112, 136, 137, 149, 153, 172, 180, 211, 219, 262

K Kandyan Law 174 Keynesian economic model 184

L labour force 184, 185 labour market 166, 184, 185 labour processes 184 labour relations 184, 195 labour rights 08, 29, 60, 61 labour struggles 61, 183, 185, 188, 194, 196 Land Development Ordinance 173, 174 language barriers 113, 162, 172 language rights and cultural rights 169 last phase of the war 86, 91 LGBTI people 165 LLRC recommendations 47, 96 LLRC Report 94, 95, 96 Lessons Learned and Reconciliation 93 Commission (LLRC) local government 46, 65, 92, 119, 171, 193, 205, 257 Local government elections 65, 92, 171, 193 low-income jobs 166 LTTE 04 - 09, 11, 16, 17, 21, 22, 23, 24, 25, 31, 32, 38, 41, 43, 46, 55, 74 - 88, 91, 92, 254, 256

270 Sri Lanka: State of Human Rights: 2018

M Magampura port manpower struggle 203 Mahinda Rajapaksa administration 96 manpower 61, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 202, 203, 204, 261 manpower agencies 61, 189 manpower company 187, 192 manpower labour 189, 194 manpower supplying agencies 61, 183, 185, 186, 195 manpower workers 61, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 202, 204 marginalized groups 158 marital rape 172 mental health 160 merger of the Northern and Eastern provinces 89 military occupation 158 Minister of Labour 192, 194 Ministry for Reconciliation 98 minority communities 67, 68 minority parties 98 minority rights 06, 89, 98, 113 missing persons 37, 49, 51, 54, 95, 96, 97, 101, 103, 150, 151, 178 moderate political alternatives 72 Muslim Marriage and Divorce Act 173, 174, 175 Marriage Registration Ordinance 175

N national anthem 169 National Commission on Women in 2017 173 National Human Rights Action Plan 101 National Plan of Action 47, 172, 173 national security 42, 69, 83, 104, 107, 108, 111, 182, 196, 198, 199, 200, 206, 210 National Sustainable Development Vision 158 National Trilingual Policy 169 neoliberalism 185, 195, 196, 254, 262

271 Index

Nineteenth Amendment to the Constitution 210, 220 non-discrimination 111, 163, 165, 170 Northern and Eastern provinces 70, 82, 87, 89, 92 Norway-facilitated peace process 86 Norwegian-led peace facilitation 88

O Office for National Unity and Reconciliation 104 Office of Missing Persons 150, 151, 178 Office of Missing Persons Act No. 14 of 2016 151 Office of Reparations 97 Office of the High Commissioner for Human 177, 259 Rights (OHCHR) official languages law 169 OHCHR 34, 35, 36, 144, 151, 152, 153, 157, 161, 162, 165, 168, 169, 170, 175, 176, 177, 178, 258, 259 open economy 183, 185 open markets 185 Optional Protocol to the Convention against 248 Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

P parliamentary model 106 peace accord 74, 76 peace building 61, 67, 68, 69, 70, 87,89, 90, 91, 92, 93, 95, 96, 97, 98, 100, 102, 105, 106, 107, 108 peace initiative of 2002 85 peace negotiations 22, 75, 78, 81 People’s Alliance (PA) 05, 77 permanent employees 186, 187, 194 permanent SLT workers 186 permanent workers 186, 188, 190, 191, 204 personal laws 28, 141, 173, 174 persons with disabilities 08, 57, 143, 144, 147, 163, 164, 165, 166, 238, 248 policy interventions 185

272 Sri Lanka: State of Human Rights: 2018 political leaders 09, 70, 89, 95 political leadership 71, 75, 81, 89, 95 political patronage 194 political reforms 68, 90, 99 political security 200 political settlement 37, 74, 77, 79, 81, 82, 105 political solution 27, 64, 74, 75, 91 populism 181 populist 181, 182, 196, 199, 200, 201, 202, 205, 206, 257 Port City 65, 202, 203 Ports Authority 128, 134, 187, 188, 192, 252 post-war politics 69, 96 power-sharing 68, 74 precarious labour 188, 189, 190 Premadasa-LTTE talks 77 prerogative writs 219 presidential election 05, 77, 78, 86, 92, 97, 106, 205 Prevention of Terrorism Act (PTA) 41, 51, 161 primary education 162, 163 private land rights 185 private lands 159, 203 private sector institutions 183 pro-capitalist legislative 185 procedural fairness 226 provincial councils 37, 75, 76, 78, 119 public health 160 public ruling 227 public sector institutions 183 public services 46, 156 public spending 158

R Rajapaksa administration 26, 27, 92, 93, 96, 98 Rathupaswala 205 reconciliation 30, 33, 34, 49, 50, 68, 89, 90, 93, 94, 95, 97, 98, 99, 100, 101, 104, 105, 150, 161, 177, 259

273 Index

refunds of taxes 220, 226 regional autonomy 70, 71, 78, 82, 89, 93 rehabilitation 09, 15, 18, 23, 38, 43, 68 religious leaders 95

reparations 48, 49, 97, 103, 151 resettlement 68 revolt 76 right to education 117, 118, 141, 162, 163 right to equality 110, 111, 114, 115, 116, 117, 118, 119, 121, 125, 126, 133, 135, 136, 163, 165, 173 right to form and join trade unions 167 right to health 08, 160, 161 Right to Information Act, No 12 of 2016. 211, 212, 213 right to work 134, 165, 166, 167, 169 rights struggles 198, 202, 203, 205, 206 retroactive legislation 223 Ruhunu Magampura Port 61, 183, 187, 191, 192 rule of law 31, 34, 63, 130, 207, 208, 209, 213, 214, 215, 216, 217, 218, 219, 220, 223, 224, 226, 233, 253, 254, 255

S Samurdhi 156 Satyagraha 188, 191 secession 72, 83, 91 Secretariat for Coordinating Reconciliation 104, 177 Mechanisms, and the Office for National Unity and Reconciliation security 06, 14, 16, 19, 25, 29, 32, 34, 40, 41, 42, 43, 54, 55, 58, 69, 83, 86, 88, 90, 91, 100, 104, 107, 108, 111, 156, 158, 159, 160, 166, 167, 182, 186, 187, 190, 196, 198, 199, 200, 201, 202, 206, 210, 247 security forces 06, 19, 25, 34, 40, 41, 43, 54, 55, 100 semi-government workers 186 separate statehood 71 serious human rights violations 94, 95, 98 sexual and gender-based violence 172

274 Sri Lanka: State of Human Rights: 2018 sexual bribery 158, 175 sexual orientation 28, 163, 164, 165 sexual violence 19, 20, 179 Sinhalese nationalist groups 76 Sinhalese political elites 70 Sinhalese political leadership 75 Sixth Amendment to the Constitution 72 SLFP 26, 47, 83, 84, 85, 97, 106 social security 156, 158, 166, 167, 247 social welfare 168 sovereignty 76, 83, 182, 196, 198, 200 Sri Lanka Freedom Party (SLFP) 83 Sri Lanka Navy 188, 197, 261 Sri Lanka Podu Jana Peramuna (SLPP) 193 Sri Lanka Telecom (SLT) 185 Sri Lanka Telecom and 188, 196 Sri Lanka Telecom Manpower Solutions 186 Sri Lanka’s civil war 70, 76, 85, 87 Sri Lankan state 69, 70, 71, 72, 73, 85, 87, 95, 107, 202 Sri Lankan Tamils 73, 93 Steering Committee on Constitutional Reform 64, 151 statehood 71 statutory time bar. 221 strike 61, 183, 188, 189, 190, 191, 193, 194, 195, 203, 204, 261 Strike action 188, 190, 194, 203, 261 strike in the Ruhunu Magampura Port 61, 183

T Tamil ethnic insurgency 76, 93 Tamil language 172 Tamil militant groups 71, 72, 73, 75 Tamil National Alliance 48, 92 Tamil nationalist demand 70, 71 Tamil nationalist politics 71 Tamil political elites 70

275 Index

Tamil political leadership 89 Tamil radical militancy 71 Tamil United Liberation Front (TULF) 72 Tamils of Indian origin 141 tax appeal structure 228 Tax Appeals Commission 224, 225, 226, 228, 229, 230, 231, 232, 233 Tax Appeals Commission (Amendment) Act, 224 No 4 of 2012 Tax Appeals Commission Act 224, 225, 226, 229, 230, 231, 232 Tax Appeals Commission Act, No 23 of 2011 224, 225, 226, 229, 230, 231, 232 Taxpayer’s fundamental rights 209 taxpayers 212, 224, 227, 233, 234 Telecom manpower strike, 183 Telecom manpower struggle 195, 197, 202, 204 Telecom Manpower workers, 193 Telecom strike 193 the Office of National Unity and Reconciliation 177 (ONUR) Thesawalamai Law 174 Thimpu talks, 74 Thirteenth Amendment to the Constitution 75 trade union action 184, 188, 189, 190, 192, 204 trade union movement 185 trade union rights 167 trafficking of women 174 transitional justice 30, 48, 49, 50, 51, 62, 65, 68, 89, 99, 100, 101, 102, 103, 104, 107, 150, 151, 155, 177, 179 transitional justice mechanisms 49, 100, 103, 150, 179 treaty bodies 62, 144, 145, 152, 155, 158 triumphalist ethnic ideology 96

U Uma Oya 203, 205 Uma Oya project 203 UN Committee on Economic, Social and 15, 152 Cultural Rights

276 Sri Lanka: State of Human Rights: 2018

UN Human Rights Council 18, 32, 34, 36, 90, 96, 97, 100 UNDP 200, 201, 259 UNHRC 36, 48, 49, 97, 99, 100, 102, 103, 104, 105, 107, 108, 179 unitary state 245, 70, 71, 75 United National Party (UNP) 05, 76 United People’s Freedom Alliance (UPFA) 86 Universal Declaration of Human Rights 139 (UDHR). UNP 05, 06, 08, 09, 10, 26, 44, 56, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 90, 97, 105, 141 upper classes 195 Upcountry community 164 Universal Periodic Review 12, 62, 112, 142, 146, 147, 150, 152, 153, 155, 159, 170, 260 use of torture 13, 148, 177

V Vagrants Ordinance 141, 175, 263

W war affected communities 68 war crimes 24, 33, 68, 93, 98, 107, 247 water security 159 welfare services 158 women with disabilities 164 workers’ rights 190 workers’ struggles 61, 205 workforce 185, 204 World Bank 37, 196, 254 writ of certiorari 228

Y youth radicalization 71

277