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Sunday, July 16, 2017
BY GAGANI WEERAKOON-2017-07-16
"None of the measures so far adopted to fulfil Sri Lanka's transitional justice commitments are adequate to ensure real progress, and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice," he observed.
Interestingly it was during his stay, that the CID arrested former Navy Spokesman Commodore D.K.P. Dassanayake, while he was receiving treatment at Welisara Navy Hospital, on charges of aiding and abetting in the enforced disappearance of 11 youths in 2008 and 2009.
The CID was investigating the incident, where 11 youth were kidnapped in Colombo and later disappeared after being detained illegally in 2008 and 2009.
In his preliminary findings of the visit to Sri Lanka, the Special Rapporteur also observed that he was given a personal assurance by the Prime Minister Ranil Wickremesinghe that once the current process of counter-terrorism reform had been completed, the Government would pass legislation paving the way for a Truth and Reconciliation Commission to be established, and set up an Office of the Special Prosecutor to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict.
"These are, of course, steps which the Government promised to the international community that it would have delivered in full by now. It is fair to say that there are some very slight indications of positive movement in this direction. During the visit, the Chief of the Army, Mahesh Senanayake, made a public commitment to ensuring that members of the armed forces who had committed crimes would be brought to justice; the Attorney General assured that if and when criminal allegations against the military finally reach his office, they will be prosecuted with the full force of the law. The Attorney General recognised that if Sri Lanka was to achieve lasting peace, then its law enforcement institutions must gain the confidence of all sectors of society, including the Tamil and Muslim minorities," the report stated.
Yet, Emmerson observed, that these indications fall far short of Sri Lanka's international commitment to achieve a lasting and just solution to its underlying problems, for the benefit of all of its communities, to establish a meaningful system of transitional justice that is governed by the principles of equality and accountability, and to put in place essential and urgently needed reform of the security sector.
The Special Rapporteur is encouraged by the Government's recent adoption of a 'zero tolerance policy' towards the use of torture; and by the appointment in July 2016 of a Committee to Eradicate Torture by the Police. In Sri Lanka, however, such practices are very deeply ingrained in the security sector and all of the evidence point to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds. As the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State's well-oiled torture apparatus.
In this context, Emmerson was extremely concerned to learn that 80 per cent of those most recently arrested under the PTA in late 2016 complained of torture and physical ill-treatment following their arrest, in cases which were later dealt with under ordinary criminal law. The Human Rights Commission emphasised that torture in custody formed a major priority in its work, and remains a pressing human rights concern. The most senior judge responsible for PTA cases in Colombo informed the Special Rapporteur that in over 90 per cent of the cases he had dealt with so far in 2017, he had been forced to exclude the essential confession evidence because it had not been given voluntarily – that is that it had been obtained through the use or threat of force.
During his interviews with current and former PTA detainees, Emmerson himself has heard 'distressing stories' of extremely brutal methods of torture, including beatings with sticks, the use of stress positions, asphyxiation using plastic bags filled with kerosene, the pulling out of fingernails, the insertion of needles beneath the fingernails, the use of various forms of water torture, the suspension of individuals for several hours by their thumbs, and the mutilation of genitals. In a number of instances brought to the attention of the Special Rapporteur, these allegations had either been supported by independent medical evidence, or accepted by the judiciary as the basis for excluding a confession at trial.
Despite the shocking prevalence of the practice of torture in Sri Lanka, the Special Rapporteur notes the lack of effective investigations into such allegations. In response to a request for the most recent official statistics, he was informed that only 71 Police Officers had been proceeded against for torturing suspects since available records began. He notes that the Human Rights Commission is now routinely informed when an individual is detained under the PTA and has unfettered access to all places of detention. However, in a system that is premised on obtaining convictions by confessions, this, and other safeguards, have proved entirely insufficient to protect suspects against this most cowardly of international crimes.
Even though Emmerson made references to the judicial system of the country and called for a modernization of anti-terrorism laws, his observations did not mention any details at the discussion he held with the Minister of Justice Wijeyadasa Rajapakshe, other than mentioning the list of people whom he met.
The reason, according to well-informed sources, could be the heated argument he encountered while referring to inmates kept under the PTA (Prevention of Terrorism Act).
The incident occurred when Emmerson accused the Sri Lanka Police of torturing most of the suspects and stressing the number of terrorist suspects in custody as 200. When Minister Rajapakshe inquired Emmerson as to who had provided such inaccurate information UN official attributed his information to reliable sources. Minister Rajapakshe in annoyance reminded the visiting official that he was the Justice Minister of the country and spoke with responsibility.
Minister Rajapakshe also stressed that 71 persons held under the Prevention of Terrorism Act (PTA) in respect of 46 cases were hardcore terrorists responsible for mass murder.
In response to Emmerson's criticism of law enforcement authorities obtaining convictions through confessions, Rajapakshe pointed to British Premier Theresa May's recent vow to protect officers and men fighting terrorism at the expense of human rights laws. The minister said that it was absurd for the British UN official to condemn Sri Lanka for obtaining convictions by confessions when the UK followed the same policy.
September or December?
Apart from tackling human rights issues, President Maithripala Sirisena is returning from his Bangladesh State visit to an impatient group of Sri Lanka Freedom Party (SLFP) members who at the moment are demanding him to quit the political marriage with the United National Party (UNP) or to let them sit independently in the Opposition.
Just before leaving for Bangladesh a group of senior SLFP members met President Sirisena. The meeting, according to sources who witnessed it, was far from being cordial.
President Sirisena has promised to discuss the matter once he returned and the discussion is most likely to take place towards the latter part of this week
The MoU reached between the SLFP and the UNP in forming a coalition government will be completed by 2 September this year.
The group, it seemed has demanded President Sirisena to do what President Chandrika Kumaratunga did in 2004. Kumaratunga sacked Wickremesinghe's Government just two years into its six-year term and called fresh elections which she won with the support of the JVP.
Prime Minister Wickremesinghe who learnt his lesson the hard way, was crafty enough to make sure that the same misfortune would not be repeated; hence made it impossible for President Sirisena to do the same. As a well-planned precautionary measure, a clause was included in the 19th Amendment to the Constitution where it says President cannot dissolve the Parliament prematurely. Which means, this Parliament will have to continue till 2020.
If SLFP group leaves as threatened, the UNP will be in a better position to form a stronger government with a few coming from the Opposition as they already have 107 seats in Parliament.
They only needs only six more MPs to ensure an absolute majority.
In doing so, they could tap on the six seats available with the JVP, even though a UNP-JVP coalition is unimaginable.
The back-benchers of the SLFP, especially young MPs are at the moment contemplating how they could use this to their advantage and to the betterment of the party.
"All those who are threatening ideally have reached their retirement age. They should retire from politics and let young and new thinkers to get together and take the country forward. If they leave, there will be more people in the Opposition who would join us in forming a government," a group of young SLPers noted.
Meanwhile, Minister Kabir Hashim recently said that the UNP would be in a better position to form a stronger government. With the common idea being embedded is that it was due to SLFP's opposition that the entire process of reconciliation and Constitution making process has stalled, there is a better chance of UNP forming an alliance with the support of 15 MPs in the Tamil National Alliance.