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Sri Lanka and the United Nations

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Sri Lanka and the United Nations Provided by the author(s) and NUI Galway in accordance with publisher policies. Please cite the published version when available. Title Sri Lanka and the United Nations. A human rights case study Author(s) Ananthavinayagan, Thamil Venthan Publication Date 2018-02-20 Item record http://hdl.handle.net/10379/7155 Downloaded 2021-09-27T12:01:19Z Some rights reserved. For more information, please see the item record link above. SRI LANKA AND THE UNITED NATIONS – A HUMAN RIGHTS CASE STUDY Doctoral thesis submitted by Thamil Venthan Ananthavinayagan, LL.M. (Maastricht University) Under the supervision of Dr. Shane Darcy Irish Centre for Human Rights National University of Ireland, Galway FEBRUARY 2018 P a g e | 1 TABLE OF CONTENTS Acknowledgments 6 Declaration of originality 9 Abstract 10 Chapter I: Introduction 12 1. The Sri Lankan human rights infrastructure and international human rights engage ment 13 2. The United Nations human rights machinery 19 3. Sri Lanka’s independence and the introduction of human rights law 21 4. Research aims and structure 23 4.1. Research question and aim of the thesis 23 4.2. Structure overview 24 Chapter II: Sri Lanka’s history: colonialism, independence and conflict 30 1. The history of the island before its independence in 1948 31 1.1. Migration and indigenous rule of the island 31 1.2. A myth becoming an essential part of history and a justification for political violence 38 1.3. The actual history 40 1.3.1. The arrival of the Portuguese: Coming for cinnamon, staying to rule 43 1.3.2. The arrival of the Dutch: ‘We gave pepper and in exchange got ginger’ 44 1.3.3. The arrival of the British Empire: the creation of British Ceylon 46 1.4. Preparing independence: the constitutional development of Sri Lanka 47 1.4.1. The Colebrooke-Cameron Commission 48 1.4.2. The Donoughmore Commission 49 1.4.3. The Soulbury Commission 51 2. Postcolonial Sri Lanka, the rise of majoritarian nationalism and the creation of the ‘other’ 54 P a g e | 2 2.1. General elections 1947 - the creation of aristocratic democracy and the rise of Political Buddhism 55 2.2. General elections 1956 – the rise of linguistic nationalism and identity formation 56 2.3. Inter-ethnic riots 1956 and 1958 58 2.4. The Marxist uprisings and the violent clampdown 62 2.5. The Presidential Elections 1982 64 2.6. Black July 1983 and the beginning of the civil war 67 3. The colonial legacy and imprint on the contemporary human rights infrastructure 71 3.1. Education policy 73 3.2. Construction of identities, communal representation and unitary state 74 3.3. Creation of dynastic democracy 76 3.4. The Soulbury Constitution 77 4. Concluding comments 78 Chapter III: Sri Lanka’s human rights infrastructure 84 1. Legal instruments for the promotion and protection of human rights 85 1.1. First Republican Constitution 86 1.2. Second Republican Constitution 91 1.3. Human rights legislation 97 1.3.1. Prevention of Social Disabilities Act 1957 97 1.3.2. Prevention of Domestic Violence Act 2005 100 1.3.3. International Convention on Civil and Political Rights Act 2007 104 1.3.4. Information Act 2016 108 1.4. The Third Republican Constitution 112 2. Institutional instruments for the promotion and protection of human rights 114 2.1. Human Rights Commission 114 2.2. Supreme Court 118 2.3. National Police Commission 122 2.4. Presidential Commission of Inquiries 123 2.5. Office on Missing Persons 125 P a g e | 3 2.6. Lessons Learnt and Reconciliation Commission 126 3. Institutional impediments to the development of a human rights infrastructure 130 3.1. Executive Presidency 131 3.2. Public Security Ordinance Act 1947 133 3.3. Prevention of Terrorism Act 1979 135 4. Concluding comments 138 Chapter IV: The United Nations treaty-based bodies and their engagement with Sri Lanka 143 1. The role of the United Nations human rights treaty bodies 144 2. Sri Lanka’s human rights treaties ratification and implementation record 155 3. Enabling an open and free society: an examination of Sri Lanka’s interaction with the United Nations Human Rights Committee 158 4. Human rights for all without racial distinction: an exploration into Sri Lanka’s reporting to the Committee on the Elimination of Racial Discrimination 168 5. Torture and decades of state of emergency: Sri Lanka’s engagement with the Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 175 6. Concluding comments 182 Chapter V: The United Nations charter-based bodies and their engagement with Sri Lanka 187 1. From the United Nations Commission on Human Rights to the United Nations Human Rights Council 188 2. Sri Lanka and the United Nations Commission on Human Rights 197 2.1. Sri Lanka’s interaction with the United Nations Commission on Human Rights during the ethnic clashes of 1983 199 2.2. Sri Lanka and the Special Procedures under the United Nations 204 Commission on Human Rights 2.2.1. Working Group on Enforced or Involuntary Disappearances 204 2.2.2. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment 208 2.2.3. Special Rapporteur on extrajudicial, summary P a g e | 4 or arbitrary executions 209 3. Sri Lanka and the United Nations Human Rights Council 213 3.1. Tackling impunity and achieving accountability. Resolutions in the United Nations Human Rights Council: 2009 – 2016 215 3.1.1. A/HRC/S-11/2: Assistance to Sri Lanka in the promotion and protection of human rights 216 3.1.2. A/HRC/19/L.2: Promoting reconciliation and accountability in Sri Lanka 219 3.1.3. A/HRC/22/L.1/Rev.1: Promoting reconciliation, accountability and human rights in Sri Lanka 220 3.1.4. A/HRC/RES/25/1: Promoting reconciliation, accountability and human rights in Sri Lanka 221 3.1.5. A/HRC/30/61: Promoting reconciliation, accountability and human rights in Sri Lanka – Report of the Office of the United Nations High Commissioner for Human Rights 223 3.1.6. A/HRC/RES/30/1: Promoting reconciliation, accountability and human rights in Sri Lanka 225 3.1.7. A/HRC/32/CRP.4: Promoting reconciliation, accountability and human rights in Sri Lanka 226 3.2. Sri Lanka and the Special Procedures under the United Nations Human Rights Council 228 3.2.1 Working Group on Enforced Disappearances 228 3.2.2. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment 231 3.2.3. Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions 233 4. Universal Periodic Reports of Sri Lanka 2008 – 2012: 237 5. Concluding comments 241 P a g e | 5 Chapter VI: Conclusion 248 1. Reasons for the contemporary state of human rights in Sri Lanka 248 1.1. Majoritarian insularity dominating public discourse 248 1.2. Perpetuating majoritarianism through Executive Presidency and the state of exception: the marginalisation of human rights 253 2. Assessment of the United Nations human rights involvement in Sri Lanka 252 2.1. The United Nations and international law as a Trojan horse of post-colonialism 257 2.2. The impact of international scrutiny on the ground of human rights violators 259 3. Final remarks and lessons from Sri Lanka 261 3.1. International human rights law as prerequisite for international constitutional law of open constitutional states 261 3.2. The necessity of international human rights engagement in situations of poor or non-existing domestic and regional human rights infrastructures 263 3.3. International legitimacy through human rights engagement 264 3.4. Human rights engagement as mobilizing basis for civil society actors and development of human rights infrastructure 266 Bibliography 273 P a g e | 6 ACKNOWLEDGMENTS எல்லாப் ꯁக폁ம் இறைவꟁக்கக First and foremost, I must express my profound gratitude to my அம்மா and அப்பா. They gave birth to me; above all, they protected, sheltered and educated me. They were and are the driving force of my life. You are my greatest teachers; morally, ethically, spiritually and intellectually. The most important lessons you taught me were in humility, defiance, perse- verance and resilience. More than anybody else, you helped me to become a passionate ad- vocate for human rights. My mother said that every father’s life is incomplete. That’s why my father had me, my mother said. His only son would complete what he had started. I hope, with this work, I have taken the first step to complete his life. His legacy is my destiny. I thank all my three uncles, Theivendram Arunasalam, Loganathan Arunasalam and Logaba- lendran Arunasalam. All of you helped me with your love, encouragement, emotional and financial support to get my doctoral project done. You were and are still taking the roles of a தந்றத. I am thanking my numerous cousins and nephews and nieces. Sakithyan, Neelan, Shivani, Keerthika, Surithika, Abethan, Abirami, Nirojan and Gautham. Family is more than close bond created by blood. It is home to happiness. This thesis would not have been finished without the constant intellectual guidance of my extraordinary and patient supervisor, Dr. Shane Darcy. He took me on board at a very crucial time of personal frustration, self-doubt and galvanised me at a state of defeatism. At our first supervisorial meeting, he told me that he would “shepherd me to the line.” He did much more than that. He shaped me profoundly. Dr. Shane Darcy redirected me to the key characteristics of an academic: diligence, meticulosity and patience.
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