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.