Putting words into action

93By Easwaran Rutnam

Former President Mahinda Rajapaksa always maintained that he and his Government at the time had nothing to hide.

But when officials and organisations dealing with human rights sought visits to Sri Lanka soon after the war to assess the post war ground situation his answer was a simple NO or in diplomatic terms “now is not the right time”.

One such organisation, which sought access to Sri Lanka, was the New York based Human Rights Watch (HRW). The former Government refused to give HRW visas.

The new Government, led by President Maithripala Sirisena, and Prime Minister Ranil Wickremesinghe, after taking office, said they had nothing to hide and assured transparency.

So far they have kept to their word.  HRW, which was refused visas by the Mahinda Rajapaksa Government, was invited to visit Sri Lanka last week and they were given unlimited access to see for themselves the transformation in the country.

“We see a lot of positive changes,” HRW Asia Director Brad Adams told The Sunday Leader after having talks with the new Government in Colombo.

Adams and his team had talks with Prime Minister Ranil Wickremesinghe as well as the Defence Secretary and several others.

Brad Adams said that during his visit to Sri Lanka he felt that the culture of fear was no more there and freedom of expression was evident. However, he said the test for this Government will be how far they are willing to go in the accountability process.

Accountability would mean the Government must ensure all those accused of being directly or indirectly involved in human rights abuses, are brought to justice. Human rights groups and the international community, including the Office of the UN High Commissioner for Human Rights (OHCHR) have urged the Government to hold those even in the military accountable for violating international humanitarian laws.

Adams noted that one concern he has is that some military officials who were accused of rights abuses during the war, including Major General Jagath Dias, are still holding top military positions.

However, going by the Maxwell Paranagama report there is no clear evidence to indicate the army was directly involved in civilian deaths during the war.

Last week the OHCHR report as well as the reports by Nissanka Udalagama and Maxwell Paranagama were tabled in Parliament.

Prime Minister Ranil Wickremesinghe presented the reports and they were taken for debate by Parliament last Thursday and Friday.

In the Maxwell Paranagama report, the Commission dismisses the claim made by the UN experts panel report known as the ‘Darusman report’ that nearly 40,000 civilians may have been killed during the final stages of the war. However, the Commission emphasised that there may be individual instances of violations of international humanitarian law which could amount to war crimes and must be the subject of a judge led investigation. In addition, the Commission is of the view that the alleged attacks on hospitals and make-shift hospitals are widespread enough to potentially reach the crimes against humanity threshold.

The Commission also noted that shelling by the army undoubtedly led to a significant number of civilian deaths, but the Commission stresses this was an inevitable consequence of the LTTE’s refusal to permit civilians to leave their control in order to use them both as a shield and a pool for recruitment, even when the Government permitted a ceasefire on April 12.

How the Government addresses some of the concerns in the Paranagama report and the other two reports, only time will time. But today it is not just about the war.

The actions of the police, has also drawn a lot of attention. HRW last week handed over a report to Prime Minister Ranil Wickremesinghe and Justice Minister Wijeyedasa Rajapaksha on torture and ill-treatment by the police of suspects in custody.

The 59-page report, “‘We Live in Constant Fear’: Lack of Accountability for Police Abuse in Sri Lanka,” documents various torture methods used by the Sri Lankan police against criminal suspects, including severe beatings, electric shock, suspension from ropes in painful positions, and rubbing chili paste in the genitals and eyes. Victims of torture and their families may spend years seeking justice and redress with little hope of success.

Conducted Research

Human Rights Watch conducted research in greater Colombo and other parts of Sri Lanka in 2014 and 2015. Previous Human Rights Watch reports have focused on wartime abuses, including torture of minority Tamil civilians. This report documents how torture and police abuse are entrenched and devastating to the majority Sinhalese population as well.

The history of police procedural violations against criminal suspects has contributed to the use of torture despite promises of reform by successive Sri Lankan governments. Suspects frequently are not informed about the reasons for their arrest. Police sometimes fabricate charges to justify the initial arrest and subsequent abusive interrogation methods. Suspects often are not produced before a magistrate within 24 hours as required by Sri Lankan law. Family members usually are not informed of an arrest or allowed access to their detained relatives. Suspects may have little or no access to lawyers, and protection mechanisms such as examination by medical officers are haphazard or improperly implemented.

“One of the saddest things about these cases is that, although Sri Lanka has decent laws to protect against such abuse, these laws seem to be treated as mere suggestions and not as required police procedures,” Adams said. “Arbitrary arrest and other police mistreatment end up contributing to the use of torture. The police are meant to protect and uphold rights, not be the torchbearers of dismantling rights.”

Even in cases where victims or their families were able to file complaints before the courts and other mechanisms, there has been only a remote chance of justice and accountability. Victims can file complaints against police abuse with the local courts, but lawyers and rights activists say that there are significant barriers to securing justice through this process, particularly in rural areas where the police engage in intimidation and threats against victims. In addition to court fees, there are regular court appearances and attorney fees for each appearance, and it typically takes years before cases are heard properly, if at all. Lawyers and rights activists advocating on behalf of the victims told HRW that the police are allowed a wide discretionary berth by their superiors, the attorney general’s department, and the courts.

Good sign

Sri Lanka’s new government took office in early 2015 on a promise of a wide array of reforms. To curtail the practices documented, HRW says the Sri Lankan government, at a minimum, should implement some key reforms including issue clear, public directives that police torture and other forms of abuse will not be tolerated. Establish an independent police oversight authority charged with investigating allegations of police abuse, the results of which would then be forwarded to the attorney general’s department for prosecution as appropriate.

This authority should be housed entirely outside the police department, report to the Ministry of Justice, have all relevant authority to conduct investigations, including on its own authority, and be empowered to subpoena police, other witnesses, and police files. Establish an independent office in the attorney general’s department tasked specifically with investigating and prosecuting cases of police abuse, including following up on referrals from the independent police oversight authority. Amend police rules and manuals to be consistent with the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions; the UN Code of Conduct for Law Enforcement Officials; and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; Ensure magistrates fully comply with their obligations to ascertain whether a detainee produced in court has suffered torture or other ill-treatment, and to order legislatively mandated confidential medical examinations; and fully implement the Convention Against Torture in line with international obligations, and ratify the Optional Protocol to the Convention Against Torture.

Adams noted that the report was accepted by the new Government with a positive note and that again was a good sign for Sri Lanka’s future. (Courtesy The Sunday Leader)