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UN COMMISSION ON HUMAN RIGHTS
55th SESSIONS: MARCH 1999

Whatever may be said, who ever may say it - to
determine the truth of it, is wisdom - Thirukkural

Statement made by Ambassador H.M.G.S. Palihakkara, Sri Lanka's Permanent Representative to the United Nations-Geneva, April 6, 1999

• Agenda Item 9 - Question of Violation of Human Rights and Fundamental Freedoms in any Part of the World

Madam Chair,

As in the past, my delegation takes the floor under Agenda Item 9 to share with the Commission information concerning the progress we have made as well as problems we encounter in Sri Lanka's consistent efforts, on a broad front encompassing national and international means to promote and protect human rights. This policy of ours is derived from two fundamental considerations. Firstly, as one of the oldest democracies in our part of the world, Sri Lanka values very much the principle of governmental accountability to the people and the electorate. My statement today is a reflection of that policy. Secondly, the Government of Sri Lanka has freely undertaken legal obligations in becoming party to the major international instruments on human rights. In addition to furnishing information and fulfilling reporting obligations to these treaty bodies, the Government of Sri Lanka has regularly shared information with the Commission and its mechanisms on a voluntary basis.

During the past year, the Government's efforts in the field of human rights continued at two levels, national and international.

In the international context we have continued to fulfill our reporting obligations under various international instruments. Most significantly, the year 1998 saw the Optional Protocol of the ICCPR entering into force for Sri Lanka. Despite a campaign of terrorism waged by one of the most ruthless groups in the world, the Government decided to accede to the Optional Protocol in 1997. The rationale was the openness and accountability through both national and international means would strengthen the Government's efforts at protecting the rule of law and human rights even in the most difficult security conditions brought about by terrorism and propaganda of the LTTE. Regrettably, not many have acceded to the Protocol even in conflict free conditions. However, the Government of Sri Lanka found it feasible and indeed desirable to do so.

Sri Lanka is now a party to 14 international instruments on Human Rights. The Government submitted its report under the Covenant on Economic, Social and Cultural Rights last year. We are in the process of finalizing our reports under the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women.

During 1998 we submitted our first report under the Convention Against Torture following the promulgation of our own domestic legislation based on the Convention, the Convention Against Torture Act of Sri Lanka 1994. We have had an open and productive discussion with the Committee Against Torture which placed on record its appreciation of the Government's effort undertaken in a difficult security environment. We also discussed in a forthright manner the problems concerning allegations of torture, action taken by the Supreme Court and representations made by national and international non-governmental organizations. We have found this interaction and dialogue very fruitful.

Particularly useful were the Committee's views on enhancing the effectiveness of our own domestic checks and balances in accordance with the provisions of the Convention. We have a continuing dialogue with the Committee. We would also like to acknowledge the useful contributions made by national non-governmental organizations for promoting awareness and addressing concerns. The Attorney-General's Department, in particular, has instituted a special programme to follow up the points that emanate from Sri Lanka's discussion with the Committee Against Torture. The Department has also taken action this year to institute legal proceedings against seven police officers under the Torture Act of Sri Lanka. Sri Lanka's next report under the Convention Against Torture will indicate the follow up action taken in this field.

The Government of Sri Lanka has continued its long standing policy of providing the International Committee of the Red Cross with full access to places of detention and facilitated its humanitarian mandate in the areas affected by terrorism which are rapidly shrinking. Similarly, unhindered access is also being provided to the UNHCR and to a large number of national and international humanitarian organizations, which continue to assist the governmental authorities in providing essential supplies and services to people in those areas. The Government will continue this policy of providing humanitarian access despite the fact that the LTTE often misuse and obstruct the presence of these organizations for propaganda purposes.

In the national context, in pursuance of its policy of upholding the rule of law, the Government has pursued its investigative effort with regard to alleged human rights abuses.

The three Commissions appointed by the Government to address allegations of disappearances had completed their work and submitted reports in 1998. The Government published these reports and made them available to the general public whilst sharing them with the UN Working Group on Disappearance as well. Pursuant to this exhaustive investigation, the Government embarked on a specific action programme to implement the recommendations of the report. A special unit has been established in the Attorney-General's Department, which has already commenced processing cases against members of the security forces and police identified in the reports. The unit comprises 5 Attorneys and 3 Senior State Counsel and is under the overall charge of an Additional Solicitor General. This unit handles human rights cases in general and cases identified by the three Commissions in particular. 1,681 such cases have been identified and criminal investigation into these are on-going under the supervision of this unit.

Under this programme, the Criminal Investigation Department has so far completed and compiled Notes of Investigations into 650 cases. Out of these cases, indictments have been presented in the High Court with regard to approximately 200 accused. In addition to these High Court cases, 45 non-summary inquires have been launched in the Magistrates Courts. Out of the accused 80% are Police Officers, whilst the remaining are Army personnel and civilians. The names of 950 Police Officers have transpired at the inquiries held by the Commissions of Inquiry.

In 125 cases, the CID has been instructed to cause further investigations. In nearly 1/3rd of the cases, the available material was deemed to be insufficient to institute criminal proceedings. With regard to all cases wherein criminal proceedings have been instituted, either in the High Court of the Magistrates Courts, and in a few cases where no criminal action has been instituted, recommendations have been sent for the institution of disciplinary action.

In all cases where court actions have been filed, the relevant officers are immediately placed on interdiction, pending determination of the court cases, and collateral disciplinary proceedings. The law enforcement authorities are determined to press ahead with the follow up to these investigations. It has become clear that deterrent action taken by the judiciary against offenders in several of the recent landmark judgments has brought about significant positive results in that allegations of disappearance have considerably diminished. International non-governmental organizations such as Amnesty International have acknowledged this.

Another significant development was the invitation extended by the Government to the UN Working Group on Disappearances to visit Sri Lanka this year. The relevant authorities are in consultation with the Working Group's Secretariat to finalize the dates and the programme for the visit. It is expected that the UN Working Group will be able to see for itself how investigative action can be followed through even during times of conflict, if the necessary political will exists to investigate and prosecute offenders.

Last year the trial-at-bar procedure was invoked in Sri Lanka for the fourth time in its long legal history to prosecute six security force personnel. These prosecutions led to their conviction and the imposition of capital punishment. In another recent landmark court case concluded in February this year, the Ratnapura High Court sentenced 6 security forces personnel and a civilian to 10 years of rigorous imprisonment for abduction of school children at Embilipitiya.

The Government will continue with vigorous investigations into the allegations of illegal burials at Chemmani. Judicial proceedings as prescribed in the Criminal Procedure Code for exhumations have already been initiated under the supervision of the Additional Magistrate of Jaffna, despite LTTE threats against members of the judiciary and others engaged in this task. The Government will take all steps necessary to provide the required resources, security, scientific and legal support to continue with the investigation. Apart from the local forensic expertise involved in this process, the relevant authorities have invited national and international NGOs to provide competent personnel to observe the process. Moreover, the access given to the local and international media will provide transparency to the investigation as the judicial proceedings continue.

These have become significant judicial decisions demonstrating the feasibility and validity of deterrent action against human rights abuses even in the intra-conflict period. They also demonstrate the fact that members of the armed forces and police are personally held responsible for human rights violations and prosecuted in civil courts.

In addition to the special unit at the Attorney-General's Department which I referred to a little while ago, in February this year, the Cabinet of Ministers approved the establishment of a special unit under the supervision of an Inter-Ministerial Officials to clarify the outstanding cases of disappearances referred to the authorities by the UN Working Group on Disappearances. This course of action became possible as a result of the submission of reports by the three Commissions and the follow up action taken by the Government to pay compensation to the next of kin of the victims. The Working Group during its visit to Sri Lanka would be in a position to see for itself the work undertaken to clarify cases referred to the Government by the UN Working Group with the help of information provided by the three Commissions.

These programmes relating to investigative action, prosecutions and clarifications will continue in regard to all identified cases of disappearances.

The year 1998 also saw the newly established Human Rights Commission of Sri Lanka being operationalised. Admittedly, the Commission had to face its share of teething problems in the period of transition from establishment to operationalisation. Despite the staff and other administrative constraints faced by the Commission during its first full year of operations, the Human Rights Commission was able to make some significant practical contributions to the national effort in the promotion and protection of human rights. Among the achievements of the Commission were the establishment of 10 regional offices.

The regional offices as well as the Commission itself placed special emphasis on detention safeguards, welfare of detainees, preliminary investigations on alleged violations of fundamental rights and awareness/education programmes. Regrettably, however, the Commission could not fully realize its planned educational programmes on human rights at the national level except organizing 25 seminars and workshops at the provincial level initiated by the Commission's regional offices.

The Commission plans to develop and implement a more extensive educational and human rights development programme in the coming year. The Commission will also be establishing its eleventh regional office in Mannar in the near future and will be appointing 15 arbitrators with a view to minimizing the length of time taken to address the complaints it receives.

Despite the inevitable resource constraints, the most significant achievements during the year was the Commission's activities relating to detention concerns. The Commission undertook 1240 visits to places of detention to inquire into the welfare of the detainees and also as a safeguard directives issued by the President in her capacity as the Minister of Defence. The Commission has also made preliminary investigations into about 1200 complaints received against the Sri Lanka security force personnel and about 3,000 complaints received against others.

On the whole, while there is naturally room for improvement, during its first full year of operation the Commission has accomplished a significant preventive effort which should be built upon. The Government will continue to provide financial support to expand and strengthen the activities of the Human Rights Commission.

The resource allocation for the Commission has been significantly enhanced to support the planned expansion of scope, intensity and the focus of the Commission's activities. Resources have been increased from Rs. 14,235 million for 1998 to an approved budget of Rs. 25.1 million in 1999 representing an increase of nearly 80 per cent. The Human Rights Commission has initiated regional activities as a member of the Asia Pacific Forum. In this regard we thank the High Commissioner for Human Rights for providing support for a workshop in Sri Lanka to be organized by the Asia Pacific Forum.

With regard to humanitarian issues, the Government will continue its long standing policy of providing humanitarian services and essential supplies to the people in areas affected by terrorism.

It is a documented fact that the LTTE has continued to siphon food and other essential supplies sent to the affected areas for use by its cadres and driven the prices of essential commodities up by levying 'taxes' from transporters and traders.

These concerns notwithstanding, the Government of Sri Lanka will not deviate from its policy of supplying civilian needs in the affected areas, a policy appreciated by the UNSG's Special Representative on Internally Displaced Persons and humanitarian organizations.

The ICRC, the UNHCR and the WFP are given unfettered access to the operational areas. Depending on the movement of people from the uncleared areas to cleared areas, the Commissioner General of Essential Services adjusts supplies to the affected areas. Last June, such an adjustment was made due to the fact that over 100,000 people had left these areas.

However, an upward revision was made in December 1998, following a reassessment made by the Commissioner General. Meanwhile as an interim measure, in advance of the country wide census scheduled for March 2001, the Government has instructed the Department of Census and Statistics to conduct a survey of the Vanni Region with the assistance of the WFP and the UNHCR, to ascertain the true demographic picture of the areas in question. After the conclusion of the survey, the supply situation will be adjusted accordingly.

Despite operational problems brought about from time to time by the activities of the LTTE, which continues to abuse transport facilities as well as food supplies for its own cadres, the Government policy has remained unchanged. This policy will continue until such time as the affected areas have been cleared and an negotiated political solution found to the outstanding problems.

The policy and operational programmes on human rights and humanitarian work undertaken by the Government of Sri Lanka have to be seen in the context of the extraordinary security threat brought about by a ruthless terrorist group, the LTTE.

It is also perhaps a significant experience for any government to undertake decisive deterrent action against offending violence unleashed by this group. This group openly advocates the destruction of the territorial integrity of Sri Lanka and the ethnic segregation of the country against the will of the people of its own community.

It indulges in the most abhorrent practices of bombing civilian targets and places of religious worship. It abuses teenage children by forcing them to function as combatants and engage in suicide bombing using primarily female cadres. LTTE cadres fighting in operational areas as well as human bomb squads elsewhere are brainwashed to commit suicide by taking cyanide in the event of being apprehended by the security forces. Consequently, the armed forces have been able to apprehend only a limited number of LTTE cadres. Most significant in this regard was the surrender of 26 cadres including teenage children at Mankulam in September last year.

These challenges notwithstanding, the Government of Sri Lanka and the independent judiciary have demonstrated to all would be offenders, that human rights abuse will not be condoned and impunity has no place in the country. The past year saw some significant executive and judicial decisions upholding the rule of law. This policy has brought about salutary result. The report of allegations even by propaganda entites have declined sharply.

We are pleased to share our experience with other who face the dilemma of handling the twin challenges of dealing with terrorism on the one had and upholding the rule of law to protect civil liberties on the other in a manner that will bring about synergies of peace and reconciliation. While we see the examples of Commissions on investigations and prosecutions in post conflict situation in several parts of the world, we would like to highlight our own experience of intra-conflict investigations and prosecutions. This is indeed feasible and desirable. Experience shows that the punishment of offenders indeed preserves the good name of professional soldiers who constitute the vast majority of the armed forces and have conducted exceedingly difficult operations with minimum civilian casualties and collateral damage. The recent operation to clear the Madhu area was a case in point. The UNHCR appreciated the restraint with which the security forces have conducted themselves in this instance.

However, I am obliged to state that the root cause of my government's principal human rights concern has remained unresolved. This was mainly due to the intransigence of one armed group, the LTTE, which, according to the distinguished Sub Commission Expert Mr. Asbjorn Eide, as stated by him in this very room last year, " is an utterly undemocratic movement unable to contemplate peace in any form".

The Government has persisted with its effort to promote a political process of constitutional reform and devolution of power as a means of addressing the ethnic issues in the country. The LTTE has single-mindedly thwarted all such efforts towards political negotiations, perhaps for fear of being marginalised without having a peace time role. While waging terrorism at home, the LTTE, through its front organizations, glibly talks peace abroad.

It has consistently tried to provoke communal clashes by constantly escalating a series of attacks on civilians targets ranging from passenger trains to Holy Shrines, but these efforts have failed. No communal clashes have taken place in the country for the last fifteen years. Attempts by the LTTE again last month to bomb passenger trains, buses and to launch a suicide bomb attack in a crowded street did not succeed in unleashing communal tension either.

In their bid to destroy the democratic fabric of the country, the LTTE has assassinated a number of democratically elected leaders including Tamil political leaders. The latest to fall victim of LTTE terror were the 61 year old elected Tamil Mayor of Jaffna, Mrs. Sarojini Yogeswaran and Mr. P. Sivapalan who succeeded her, in callous disregard of Tamil people's own franchise. Ironically, Mrs. Yogeswaran's husband, who was a Member of Parliament, too had been gunned down by the LTTE in July 1989. In September last year, the LTTE brought down a civilian passenger aircraft causing the death of over forty eight Tamil passengers and six crew members.

Despite these terrorist activities, the Government has expressed its willingness to enter into negotiations with the LTTE, if it demonstrates readiness in a verifiable way, to renounce its terrorist campaign for a mono ethic separate state in Sri Lanka and join with other political parties to work towards a negotiated political solution within a specific time frame.

The Government at the highest level has made this clear and I would like to reiterate this call at this Commission.

Madam Chair,

I have tried to outline in a candid and forthright manner what a democratic country of the developing world can do in the realm of human rights undeterred by an extraordinary security threat posed by terrorism. There are no easy solutions to the political problems that bring about such violence, as much as there are no quick solutions to the human rights problems engendered by such violence.

This, however, does not make this a catch 22 situation where the governments have to remain powerless by-standers. Whilst addressing the root causes of violence and its immediate security dimensions, we have also done our best to address the human rights problems thrown up by the cycle of violence. We take modest pride in saying that we have achieved considerable success in the latter. We continue to persevere on the former and are optimistic that we will not be disappointed.

The people of Sri Lanka, who have cherished democracy, the rule of law and universal franchise for over half a century, see no means other than democratic political negotiations to bring about the necessary constitutional reform that can address the root causes of violence in our societies. The Government is determined to pursue this democratic path demanded by its electorate. Terrorism, however ruthless or tenacious it may be, will not be able to reverse this process.

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