Human Rights Commission of Sri Lanka Report for the period 1.4.2001-31.3.2003
2 Contents 1. INTRODUCTION.. 05 2. Part I INQUIRIES AND INVESTIGATIONS.. 07 3. Part II INITIATIVES AND SPECIAL PROJECTS COVERING THE COMMISSION S FULL MANDATE... 14 4. Part III ADMINISTRATION AND FINANCE.. 26 5. PART IV FUTURE DIRECTIONS.. 31 6. TABLES.. 37-48 7. ANNEXURES.. 49-110
3 Composition of the Commission Chairman Mr. Faisz Musthapha P.C. (Up to May 2002) Dr. Godfrey Gunatilleke Members 1. Mrs. Manouri Muttetuwegama 2. Mr. Sarath Cooray 3. Mr. N. Selvakkumaran 4. Dr. M.A. Zainudeen Secretary Mr. R.C. Karunakaran (Up to May 2002) Mr. D.H. Siriwardene Directors Mr. N. Punchihewa - Investigations & Inquiries Mrs. T. Rajapakse - Monitoring & Review Mr. N. Hapuarachchi - Education & Special Programs Mr. R. Arandara - Administration & Finance Senior Staff of the Commission Legal Officers 1. Ms. T.D. Wimalasuriya 2. Mrs. S. Thambydurai 3. Ms. S. Rajapakse 4. Mrs. H.K.K.W. Ekanayake
4 HUMAN RIGHTS COMMISSION OF SRI LANKA Head Office No.36, Kynsey Road, Colombo 08 Telephone : 2694925, 2673806, 2685339, 2685980, 2685981 Hotline : 2689064 Fax : 2694924, 2696470 E-mail : sech@sltnet.lk Regional Offices Address Telephone Kandy 39/2A, Peradeniya Road, Kandy 08-12222855 Matara 12/42, Broadway Road, Matara 041-2226533 Batticaloa 16, Govington Road, Batticaloa 065-2224420 Anuradhapura 3156, D.S.Senanayake Mw, Anuradhapura 025-2221451 Trincomalee 97, Customs Road, Trincomalee 026-2222607 Vavuniya 129, Kanthasamy Kovil Road, Vavuniya 024-2221060 Badulla 9/2A, Senanayaka Udyana Mw, 055-2229634 Badulla Ampara 23/1, Dutugemunu Street, Ampara 063-2222340 Kalmunai 127, Batticaloa Road, Kalmunai 067-2229728 Jaffna 20, Somasunderam Avenue, Chundukkuly, Jaffna. 021-2222021
5 Human Rights Commission of Sri Lanka Report for the period (01.04.2001 31.03.2003) Introduction The last report of the Commission briefly surveyed the activities undertaken by the Commission which assumed office in 2000. The main tasks of the Commission were threefold. First, the Commission had to deal with a large backlog of inquiries and investigations that had accumulated in the first three years when grievances dating back to 1970s and 1980s were brought before the Commission for redress. The circumstances in which the Commission entertained these complaints and attempted to inquire into them have been detailed in the Commission s last report. The second task was to strengthen the capacity of the institution to deal more speedily and efficiently with the ongoing work which consisted largely of the violations under the emergency regulations and the PTA. The third task was to fulfil its responsibilities under the other major functions assigned to it under its mandate. By the end of the period reviewed in the last report the Commission had addressed the challenges in all three areas. First, initiatives had been taken to clear the backlog and considerable progress was made by 31.03.2001. Second, the Commission restructured the administration, expanded cadres and installed systems for improving the processes of investigation documenting and monitoring; the procedure for inquiries was streamlined to increase output and efficiency; it also commenced strengthening the Commission s institutional capacity at the regional level by establishing regional committees to assist the Commission. Third several new initiatives were undertaken to expand the Commission s activities with the objective of fulfilling the whole range of responsibilities assigned to it and covering its full mandate. These initiatives covered some of the main activities that had been planned in the Commission s three year corporate plan that was annexed to the last report. They included the review of legislation for compatibility with the fundamental rights guaranteed under the Constitution, the rights of IDPs, Torture, Human Rights Education, a compilation of 25 case studies based on research and analysis of past cases and the rights of minorities. The report that follows describes the progress made by the Commission in all three areas during the period under review. The two year period covered in this report was marked by several significant developments that had a far-reaching impact on the work of the Commission. The most important of these was the ceasefire negotiated by the government and the LTTE and the commencement of peace negotiations. The emergency was lifted and the operation of the PTA was suspended. These changes had the effect of reducing one part of the Commission s workload as well as adding new
6 dimensions to it; they are discussed in the main body of the report. Towards the end of the period under review Parliament appointed a Select Committee to consider what needs to be done to strengthen the Commission to enable it to perform more effectively. The Committee had not completed its deliberations by the time the Commission s term came to an end. A summary of the Commission s representations to the Committee are contained in the third section of this report. The period also witnessed a few eruptions of ethnic violence in Mawanella and the East which required responses from the Commission in its task of protecting human rights over and above its regular work. This report is presented in four parts. The first part deals with inquiries and investigations and covers both the work on the backlog and the workflow during the period under review. It describes the changes that occurred during the period and the impact they had on the work. It also discusses some of the key issues that arose in exercising the Commissions powers in regard to investigations and inquiries. The main section is followed by a subsection which deals with the improvements in the system of documentation and monitoring. The second part deals with activities covering the rest of the Commissions mandate. This includes the sections dealing with the projects undertaken by the Commission to deal with its functions other than those relating to investigations and inquiries human rights education, internally displaced persons, and review of legislation, torture, and minority rights. The third deals with the future directions in the Commission s work and the initiatives that were taken. It covers the initiatives taken to develop the capacity of the Commission at the regional level; the recommendations for amending the HRC Act; and modalities such as public hearings that have to be developed to enhance the Commission s effectiveness. The fourth part deals with administrative and financial matters. The administrative section describes the institutional restructuring that was done and the changes of staff. The financial section provides the financial information and also describes briefly the severe financial constraints under which it had to carry out its work.
7 Part I Inquiries and Investigations The last report provided a brief account of the way in which the Commission organized the work to clear the backlog of complaints that it took over in 2000. With the assistance of the Asia Foundation the Commission was able to separate this work from the current workload of complaints that were being received by the Commission and deploy a special cadre of mediators and lawyers to complete the work. The method adopted enabled the Commission to screen the complaints and identify those which did not come within the mandate of the Commission as well as those which the complainants did not want to pursue for a variety of reasons. Consequently the number of complaints which required further investigation was reduced to 6693. At the end of the period, all investigations were completed except for a few outstanding cases (367) where the complainants had continued to appeal against the determination given by the Commission and on which the Commission had to give a final decision. The information on the complaints received disposed during the period 2001-2003 is presented in Tables 1-8 1. These include complaints of various categories received by both the head office of the HRC and the regional offices. The total number of complaints regarding arrests, detention, torture and harassment deaths in custody, missing persons and disappearances received during this period (01.01.2001-31.03.2003) was 6050 2. After the MOU between the government and the LTTE came into effect in February 2002, and also after the emergency was lifted and operation of the PTA was suspended, HRC ceased to receive complaints under ER and PTA. The procedure that had been enforced requiring the police to submit reports on all arrests under ER and PTA within 48 hours of the arrest fell into abeyance. Although this procedure did not extend to arrests under normal law, the practice of reporting arrests under ER and PTA helped in the surveillance of persons in police custody as a whole. The HRC has reviewed the situation relating to the reporting of arrests and is taking appropriate action to enforce procedures that would protect the rights of all persons taken into police custody. HRC received 2141 complaints relating to missing persons during this period. As stated in the last report the complaints received by the Commission under this category included cases of persons missing for a variety of reasons some of which are not related to any violations of rights 3. Many of the missing persons have been traced during investigations. The cases that were 1 Vide pages 37-48 2 Tables 2, 4, 6 Vide pages 38, 40, 42 3 Tables 3, 5, 7 - Vide pages 39, 41, 43
8 pending at the end of the period are under investigation. During the period 2001-2003 HRC received no complaints of disappearances which were alleged to have been caused by the armed forces or the Police. However there was a marked increase in the number of missing persons reported from the Jaffna and Vavuniya region in the period 1.1.2002 to 31.03.2003. These include complaints received from parents regarding children who were missing and who had presumably been recruited by the LTTE. It appeared that parents were making use of the new conditions created by the MOU to make complaints regarding the conscription of their children by the LTTE. The LTTE however maintained that these children had volunteered to join their movement. Although these complaints were made against a non-state party and the HRC strictly had no authority to deal with them, it collaborated with UNHCR and UNICEF to assist complainants. The Commission s staffs were able to bring these complaints to the notice of the LTTE. In their discussions with the UN agencies and the HRC, the LTTE agreed in principle to abide by the international norms and the articles of the Convention on Children s rights relating to the age of children and release all young persons recruited by them who were under the age of 18. In the case of the complaints made to the HRC and brought to the notice of the LTTE, the LTTE generally abided by this undertaking. It should be noted however that according to the information that was reaching the HRC, recruitment was continuing. The UN agencies monitoring the situation reported that the LTTE was conscripting child soldiers even as they released some children on receiving complaints. The reports of the UN agencies also referred to the social and economic hardships which were motivating young persons to join the LTTE organization of their own accord. The HRC is unable to comment authoritatively on the recruitment by the LTTE, particularly the process occurring in areas under the control of the LTTE to which HRC had no access. The HRC however endeavoured to mitigate the problem by collaborating with the UNICEF and UNHCR to establish a joint monitoring mechanism that led to regular consultations with the agencies. These arrangements were helpful to some degree in holding the LTTE accountable and eventually inducing them to make an explicit commitment to refrain from conscription of children less than 18 years of age. Ensuring that these commitments are kept however demands a much more effective regime of monitoring and requires the urgent attention of the government in its peace negotiations with the LTTE. The HRC gave special attention to cases of torture, rape in custody and custodial death that were reported to it. The number of cases of torture and harassment had increased from 728 in 2001 to 850 in 2002. The complaints classified as torture had more than doubled from 294 to 607 cases. In the first quarter of 2003 a total of 220 cases of torture and 158 of harassment were reported. The importance of HRC s role in these cases lies in the prompt action taken to visit victims and record the relevant evidence. This initial work acts as an effective deterrent to the suppression and distortion of the facts relating to the incidents and strengthens and facilitates the prosecution of the perpetrators. It should be mentioned here that owing to the heavy cuts imposed on the HRC budget in terms of the government s budgetary policy, HRC was severely constrained
9 during this period in carrying out its routine duties such as visiting police stations and this often hampered the Commission in performing this deterrent role as efficiently as it would have. Some of the general issues relating to visits and the special attention given by the HRC to torture are discussed in further detail in the sections that follow. It would be seen from the figures in Tables 3-7 4 that the workload of the HRC has continued to increase. For the entire period the total number of complaints excluding the cases under ER and PTA amounted to 16016 5. Of this total, approximately 20% consisted of complaints that fell outside the mandate of the HRC. In the year 2002 2003, despite the reduction in complaints relating to the ER and PTA the total workload increased by 33%. Apart from the reduction of the complaints under ER and PTA, there was no significant change in the composition of the complaints. As in the past, the largest number of complaints of FR violations were received from public servants and dealt with matters relating to their promotion, transfer retirement and dismissal. The largest category of complaints by citizens was those relating to school admissions. The next in size was that of complaints against state action relating to property such as those dealing with land acquisitions, encroachments and housing. In organizing the special project for the clearance of the complaints which had accumulated during the 1997-2000 period, the Commission had expected to be able to keep abreast of the incoming work. This unfortunately could not be done to the extent expected. The workload continued to rise continuously; the cadres available for handling the complaints, working according to acceptable output norms could complete not more than about one third of the current work. At the same time the financial provision available for mediators had been reduced. As a result the Commission continued to accumulate a backlog of cases. By 01.04.2002, the Commission had as many as 3200 cases on which investigations had not begun. The Commission was able to organize extra budgetary provision to engage a special team of mediators and lawyers to deal with the backlog. By the end of March 2003 the Commission had completed 8304 cases 6 and was organized to complete the balance within a period of 9 months. Cases referred to the Commission by the Supreme Court At the time the Commission took office in March 2000 it had to deal with a backlog of 27 cases referred by the Supreme Court to the previous Commission. During the term of office of the Commission March 2000 to March 2003 the Supreme Court had referred 64 cases to the HRC for investigation and report under section 12 of the Human Rights Commission of Sri Lanka Act. 4 vide pages 39-43 5 Table 1 Vide page 37 6 Table 1 Vide page 37
10 There had been a considerable increase in the number of cases referred to the HRC. The Supreme Court in its informal communications to the Commissioners had indicated that their lordships expected the Commission to use its investigative powers to the fullest extent to inquire and report on these cases in order to ensure that petitioners obtained due redress. The HRC was able to go into primary documentation, summon witnesses and obtain information that would not otherwise be available to the Supreme Court. In the course of the inquiries the respondents often suggested remedies that would lead to a satisfactory settlement of the case. The case relating to the scheme of recruitment of librarians and the case relating to admission to the university are examples. At the time the Commission s term ended, out of the 91 cases referred to the Commission inquiries were concluded and reports sent to the Supreme Court in respect of 72. The full status report sent to the Supreme Court as at 31.03.2003 is produced in Table 8 7. Organization of Work and Measures to Improve the System There were two projects that were implemented to improve the system of reporting and documentation. These were finance by the Asia Foundation. Under one project the HRC installed a computerized system with specially designed software to enter data directly to the data base maintained in head office. The system was designed to trace disappearances, monitor arrests and detentions with cross reference to all the regional offices. At the time the Commission approached the end its term of office the system had been installed in all regional offices and was being tested. The other project was a system for monitoring progress on the cases of FR violations other than ER and PTA cases and disappearances. This unfortunately was delayed owing to a problem in the software installed. The computerized recording of the progress on cases was begun in the first quarter of 2003. When the Commission organized the special project it had expected to use the opportunity of dealing with the large number of accumulated cases to classify the cases according to the nature of the violation and the authority responsible and thereafter identify the priorities for improvement of systems and procedures in government departments. The classification would have shown where the system was weakest and where the largest number of violations was occurring. The shortage of staff and resources prevented the HRC from undertaking the work as planned but the Commission was able to deal with some of the cross-cutting problems by identifying the issues in individual cases that would have general application and therefore need to be better clarified. These included school admissions, schemes of recruitment in the public service; revision of terms and conditions of services; schemes of retirement; political victimization. The decisions of the HRC in selected cases are presented in Annexe 1 8. 7 see Table 8 Vide pages 44-48 8 see Annexe 1 Vide pages 49-80
11 Most of these cases were based on alleged violations of Article 12 - unequal treatment and discrimination. HRC observed that the schemes of recruitment as in the case cited raised numerous issues regarding the date on which a scheme comes into effect. In this and similar cases the complainants often argue that the anomalies and the need to correct them had been recognized long before the scheme was finalized. Action had been initiated but for a number of reasons including the systemic inefficiencies and delays resulting from them, the task of finalizing and gazetting the scheme had taken a very long time. The due process however takes place. The scheme is gazetted with the date on which it should take effect.meanwhile some of the employees had retired. While in most of these cases the complainant cannot claim that there has been a violation of a fundamental right, the cases of hardship brought to the notice of the HRC are often genuine and seem to merit some relief. Most often they could have been avoided if there were some clear guidelines which would have covered the possible anomalies that arise in cases of revision. In the cases of political victimization the grievance procedure and the granting of redress were highly politicized. Often the correction of wrongs had led to the violations of rights of other officers. The case relating to the appointment of Karyala Karya Sevakas raises several issues relating to procedural lapses that lead to violations of rights that can cause serious hardship to persons. The lack of consistency in the application of rules and incorrect decisions taken at the Provincial level has also given rise to complaints of unequal treatment. As illustrated in the cases cited in the Annexe 1 the subsequent correction of these wrong decisions have consequences which can lead to disaffection among officials that could have been avoided. The HRC planned to respond to these systemic problems that came to light in the course of inquiries by organizing regular consultations with the PSC and the state authorities concerned. The Commission also planned to use these cases as educational material in the education programmes that were being designed for the public service. Public Hearings The Commission s experience with the large number of individual complaints it received pointed to the need for initiatives which would enable the public to ventilate their grievances on matters relating to their fundamental and human rights and identify the systemic weaknesses that caused the violations that were occurring. The Commission made preparations to hold public hearings on issues which were causing national concern. These issues included torture, social and economic rights in the Hambantota District particularly in relation to poverty alleviation and seasonal distress, school admissions, and road accidents resulting from state inaction. The Commission was able to hold one public hearing on torture in the Matara District, before the completion of its term.
12 Issues Relating to Enforcement of Recommendations One of the issues that caused continuous concern to the Commission was the extent to which it was able to ensure the compliance of the state agencies with the recommendations that were made by it on the cases that were heard. In general most state agencies cooperated with the Commission in its endeavour to seek agreement on the facts of the case and the nature of the violation if any. The Commission was able to promote conditions for the hearing which were non-adversarial and which enabled all parties to seek together for the right action in the circumstances of the case. The Commission s objective was therefore essentially one which was educative designed to promote the internalization of the rights-based approach in all agencies that came before it. This approach on the whole was successful. There were cases however where agreement could not be reached. In such cases the Commission made its recommendations and expected the Agency concerned to act in accordance with the provisions of the Act which require agencies to report within 2 weeks what action they intended taking to implement the recommendations and if they did not intend doing so, for non-compliance. In the rare cases where the agencies refuse to implement the Commission s recommendation the Commission reports the case to the President who is required to table it in Parliament. The act does not provide any other means of resolving such problems. In the representations to the Select Committee of Parliament the Commission made certain recommendations which would strengthen the Commission s powers in this regard. Another issue that arose was the Commission s powers to issue interim orders requiring the respondent to stay action on the matter which is the subject of the complaint when an inquiry into the complaint is in progress. In many such cases the Commission had little difficulty in getting the respondent to agree suspending action till the hearings of the Commission were completed and a recommendation made. In a few cases this was not possible. In one such case where a group of families were being evicted from their homes on the ground that they were encroachers, the Commission sought to intervene to prevent such eviction but its order was resisted on the ground that the HRC had no jurisdiction to issue such an order. The matter came up for determination before the Court of Appeal to set aside the said interim order, and is still pending. The issue involved here is whether the HRC can make an interim order staying an intended demolition until the matter is fully investigated. Outbreaks of Violence There were several outbreaks of violence that occurred during the period 2001-2003 where the Commission decided to visit the locations and conduct its own inquiries. The Commission was of the view that it needed to develop the capacity for prompt responses to situations in which law and order had broken down and needed to be restored immediately to protect the human rights of
13 citizens who had been victims, where there was threat of further violations and where there might be some presumption of State inaction. The Commission had done this in the case of the Bindunuwewa incident and had followed the proceedings of the Bindunuwewa Commission of Inquiry. During the period under review the Commission visited Mawanella, Mutur and Valechenai after the outbreaks of communal violence in these locations. The report issued on Mawanella is in Annexe 2 9. 9 Annexe 2 Vide pages 81-92
14 Part 2 Initiatives and Special Projects Covering the Commission s Full Mandate In the previous section reference was made to the budgetary constraints that affected the work of the Commission. Given these conditions the HRC was not able to make any significant allocation of budgetary funds for work outside the normal activities pertaining to inquiries and investigations into complaints. Nevertheless several Regional Co-ordinators continued to organise school events and short programmes on human rights issues and thereby engaged in a sustained effort to raise public awareness. A brief report on their activities is contained in Annexe 3 10. The Commission was able to overcome part of these constraints by mobilising extra budgetary resources for special projects covering a number of the Commission s functions other than those relating to inquiries and investigations. The special project on the backlog financed by the Asia Foundation was an exception but even in this project the extra budgetary funds were available mainly because the project was formulated with a view to installing systems of classification and monitoring that would have had a long-term impact on the efficiency and output of the Commission. The other projects that were financed from extra budgetary sources enabled the Commission to cover large parts of the mandate which had not received adequate attention in the past. The projects generated activities which engaged the head office and regional staff and gave them the opportunity to enhance their knowledge and skills while at the same time it increased their workload considerably. The projects financed from extra budgetary sources are listed below: Project donor agency 1. The Review of Legislation - UNDP/SIDA 2. Human Rights Education - NORAD 3. The Rights of IDPs - UNHCR/Asia Foundation 4. Monitoring and raising Awareness with regard to Torture - AUSAID 10 Annexe 3.1 and 3.2 Vide pages 93 and 94
15 5. The Strengthening of Capacity of the Jaffna Regional Office - UNDP/SIDA 6. Human Rights for All - The Protection of Minority Rights. - EU (European Union) The Review of Legislation The main components of the project are given below: Component 1 A study of all existing national laws, written and unwritten and the existing administrative practices to see whether they comply with the provisions of the fundamental rights chapter of our constitution; Review of the relevant laws in relation to Sri Lanka s international human rights obligations; A study of all existing international treaties and other instruments and recommendations to the government on the need to subscribe or accede to such international treaties and instruments; Recommendations to the government with regard to the formulation of new laws and administrative directives and procedures in the future; Component 2 Capacity Building of the HRC s regional offices Component 3 Internet based treaty index Training of the legal Community
16 The project was initially planned for a period of 2 years commencing in December 2000. Owing to unforeseen delays in the recruitment of staff and agreement on the financial procedures, the Commission was able to commence work in all three components only in mid 2001. Only one workshop was conducted due to above said reasons. See Annexe 4 11. Human Rights Education and Public Awareness Programmes This project was funded by NORAD. The project first commenced with a survey of ongoing human rights education programmes. There is a large, widely dispersed programme of human rights education and public awareness programmes implemented by civil society organizations and university- based centres. These ranged from extended training programmes which issued certificates to the trainees such as the programmes conducted by the Centre for Human Rights of the Colombo University and the National Human Rights Institute to one day workshops and programmes by various NGOs. There has been no systematic evaluation of these programmes both for their quality and impact. An evaluation done by a foreign expert drew attention to several shortcomings, chief among which were the tendency to rely on the lecture model and the neglect of participatory methods and approaches. There has also been lack of adequate attention and effort to the building up of locally relevant case material. The objective of the Commission was to strengthen existing capacity and fill some of the critical gaps. In the implementation of the project the Commission planned to work closely with the NGOs who were already working in the field of human rights education. In collaboration with the NGOs and other centres of human rights education, the project planned to develop a core curriculum, which, among other things, addressed some of the problems that surfaced in the HRC work and pointed to the need for enhancing knowledge, attitudinal changes and right values for the promotion and protection of human rights. The curriculum had to be of acceptable quality covering the fundamental rights in the Constitution and the main conventions on human rights, and rich enough in content to promote a human rights culture in government agencies, NGOs and in society as a whole. The preparatory workshops were held for the purpose of designing the framework for the curriculum and work was commissioned to develop approximately 12 modules targeted on the main clusters of human rights, covering civil and political rights, social economic and cultural rights, rights of women and children and rights of other disadvantaged groups such as the IDPs. The modules were addressed to both the duty bearers as well as the rights holders. A consultant was engaged to prepare approximately 25 case studies that could be used in the programme. Regional Committees were formed to plan the first round of the programme of training of trainers. The implementation of the project has been delayed unavoidably for a number of factors. Lack of staff and consultants as well as the concentration of effort on other programmes such as the 11 Annexe 4 vide page 95
17 project on minority rights which was also part of the broader HRC programme for raising public awareness contributed to the delay. Rights of the IDPs Among the disadvantaged and vulnerable groups that the Commission had selected for special attention in its Corporate Plan, the internally displaced persons had been given the highest priority. In its last report the Commission had discussed the critical importance of focusing on this group of disadvantaged persons and the initiatives taken to respond to their problems which came within the mandate of the HRC. During the period under review the Commission took these initiatives further. With Asia Foundation assistance, the HRC discussed the situation with a group of NGOs and commissioned three institutions to undertake the analysis of IDP problems and make recommendations to the Commission. The guidelines for the study were provided by the HRC to ensure that the study addresses the practical problems relating to the conditions of the IDPs. The studies focused on three sets of issues. First it examined the existing procedures and conditions pertaining to IDPs in terms of the Deng principles that provide a framework of international norms for the protection of the rights of IDPs. This part of the study was undertaken by the Centre for Policy Alternatives. Second the Law and Society Trust examined the existing legislation and how it can apply to the IDPs. In the course of this analysis this part of the study was expected to identify gaps in existing legislation in relation to the special types of problems that had arisen as a result of displacement such as problems of prescription, property rights, loss of documents etc. The third part provided an analysis of prevailing conditions in relation to the types of displacement and the nature of the violations of civil, political, social, economic and cultural rights that were taking place. The project was successfully completed and the recommendations of the studies were used to develop a project with the UNHCR for the monitoring of the rights of the IDPs. The UNHCR proposed that the HRC strengthen the regional offices with special units to give closer attention to the protection and promotion of the rights of IDPs. The project commenced in June 2002. Six regional units were established in Trincomalee, Vavuniya, Mannar, Jaffna, Puttalam and Batticaloa. The project officers were given an initial orientation and training and were required to prepare a situation analysis that would identify the typology of problems of IDPs. This was to enable the HRC to plan the medium term and long term action it needs to take to protect and promote the rights of IDPs. In the short term the project officers were expected to receive and inquire into complaints of IDPS pertaining to the violation of their rights and examine them both in relation to the existing domestic laws and regulations as well as the international norms. The project officers were expected to work in close collaboration with the government officers dealing with IDPs, pay regular visits to the refugee camps and settlements, monitor the conditions and promote the observance of the international norms contained in the Deng
18 principles to the fullest extent possible. They were also required to pay special attention to the schemes of assistance that are provided to the IDPs and examine whether they were being administered with adequate transparency and accountability. The project was administered by a Project Officer who worked closely with the Regional Co-ordinators. The data and the reports were maintained by a documentation centre specially established for the project. In addition to this work, the HRC collaborated with the UNHCR in a study of the property rights of the IDPs which examined the ground situation in regard to the property belonging to the IDPs and the complications that have arisen in regard to prescription, ownership, inheritance, shared ownership and other similar problems. The study was nearing completion at the time the Commission concluded its term. These four projects have provided a solid foundation for the Commission to take forward the work relating to the IDPs, which is likely to need considerable attention from the HRC. The scope of work brings the Commission into all areas of human rights and demands innovative approaches to deal with the wide ranging derogation of human rights that occur in conditions of displacement. These tasks would enable the HRC to design structures of rights and responsibilities particularly in regard to the resettlement and rehabilitation programmes to ensure that these are implemented with full transparency and accountability. HRC could further apply the lessons learnt to expanding its activities to cover social and economic rights. Some of these issues are discussed further in the section on future directions. Workshops/awareness programmes conducted during the period June 2002 March 2003 is produced in annexe 5 12. Monitoring and Raising Awareness in regard to Torture This project was financed by AUSAID and was to be implemented during a period of one year from 1 st June 2002 to May 2003. The Commission gave high priority to this project as it continued to receive a high number of complaints of torture from all parts of the island. The pattern of complaints indicated that quite apart from the many complaints of torture that were reported in connection with the arrests under the ER and PTA as part of the ethnic conflict, cases of torture did occur in other circumstances as well, when suspects were taken into custody under the normal law. The causes contributing to torture were numerous. Lack of skill in the methods of interrogation was singled out as a major cause. The public also appeared to condone torture in certain circumstances. Victims themselves were often reluctant to pursue their complaints and were ready to settle for some compensation. The Fundamental Rights cases and the decisions given may have had some deterrent effect on state officers. But on the whole the legal and judicial processes did not seem to have been very effective. In the fundamental rights cases where reparation to victims had been ordered, the legal and administrative follow up to prosecute 12 Vide page 96
19 the perpetrators and to take the necessary disciplinary action against them had not been effectively pursued. The data in Table 3-7 indicate there has been a sizeable increase in the number of complaints from 2001 to 2003. In these circumstances the HRC felt it is essential that it should implement a programme that will identify monitoring processes which increase surveillance of arrests and detentions and take measures that would help to eradicate torture. The project was undertaken in three phases.the main activity in the first phase was an intensive programme for the surveillance of arrests and detentions in selected regions through unannounced and frequent visits to all police stations in the selected region. The regions selected were Ampara, Vavuniya and Matara. This first stage was designed to give more detailed information on the incidence of torture and the prevailing systems that would help in the second and third stages of the project. The second stage was expected to develop a system of regular monitoring that would be effective in reducing or eliminating torture. In the third stage, the project would move into the educational and public awareness programmes which were targeted on the state officials, victims and the public. See Annexe 6 13. The Strengthening of Capacity of the Jaffna Regional Office After the ceasefire agreement came into force and a certain degree of normality was restored to the Jaffna region, the HRC perceived the urgent need to strengthen the capacity of the regional office to respond to the new needs that had arisen. The situation in the region and the initiatives that were taken are dealt with at some length in the section that follows as their relevance for the future directions of the Commission s work in the North East as a whole and within systems of devolution that would evolve are far-reaching. The Jaffna region has experienced the ravages of prolonged military combat on a scale and level of intensity not witnessed in other parts of the conflict - affected areas. The impact the armed conflict has therefore had on the derogation of human rights has been severest on the Jaffna region and its inhabitants. More than most other areas in the North and East it has suffered from loss of contact and communication with the rest of the country. The presence of the army on the one hand and the threat from the LTTE and other militant groups on the other hand, created conditions which led to the disempowerment of civil society and the erosion of the entire infrastructure that was needed for the protection of human rights. Consequently most of the institutions and processes that are needed for sustaining an effective human rights regime have been gravely impaired if not altogether destroyed. The renewal and restoration of these processes and institutions and the building of new capacity to meet the challenges that are emerging with the ongoing peace process require a special, 13 Vide page 97
20 concentrated effort on the part of the HRC. The Jaffna region contains the whole gamut of problems relating to human right violations of diverse groups that have occurred during the war, ranging from the internally displaced, the missing persons, the female headed households, disabled and conscripted children, refugees returning from abroad and problems arising out of the ethnic cleansing. The nature of the problems in every area related to human rights is exceedingly complex. For example the situations involving the internally displaced in the Jaffna region range from those arising from the ethnic factor to situations in which one group of internally displaced has taken over the land and property of another displaced group. Security considerations and de-mining will determine the pace of re-settlement. A large number of cases of disappearances in 1996-1997 as well as in the 1990-1995 periods remain unresolved. In this context the HRC planned to undertake an integrated programme of action for the protection and promotion of human rights. The Commission visited Jaffna on several occasions and met citizen groups, officials, lawyers and academics to make a rapid appraisal of the situation before preparing the programme. The programme was to be implemented over a period of 2 years. The integrated programme which the Commission commenced to implement in Jaffna contains several elements which are essential for strengthening the institutional and civic capacity at the regional level for the protection and promotion of human rights. The priority the HRC gives to these tasks is also influenced by the consideration that Jaffna has been the centre of the Tamil community and culture, and the restoration and strengthening of institutions and processes relating to human rights will have a far-reaching positive impact on the peace process and the North-East as a whole. After gaining experience in implementing the programme in Jaffna over a period of about six months, HRC was to consider replicating it in the rest of the North East. The programme consisted of the following activities: Regional Committee of the Human Rights Commission for the Jaffna region In the first part of the programme the Commission envisages the establishment of a regional committee for human rights under section 11(b) of the HRC Act. The Commission has been considering for some time the need and feasibility of such an institution which will develop the capacity at the regional level and help in integrating the human rights institutions and functions into the system of devolution. The challenges that Jaffna will face as the ongoing peace process matures present the Human Rights Commission with a unique opportunity to develop such an institution and gain the knowledge and experience that would be relevant for the other regions.
21 IDPs The work related to the IDPs will be carried out under the UNHCR sponsored programme that is being implemented. Linked to the problems of the IDPs is the problem of compensation arising out of the damages and destruction of private property caused by the military conflict. The Commission may need to examine the issues pertaining to the rights of the victims as well as the international norms that are applicable in these cases. Investigation and inquiry into the disappearances and missing person The Commission decided to fulfil the undertaking it gave to the parents and guardians of the persons who are missing or have disappeared to investigate into their complaints and do its utmost to ascertain all the facts and circumstances of each case. For this purpose, the Commission appointed a Committee of three to investigate into the disappearances and cases of missing persons. The Commission encouraged the Committee to conduct the inquiry in a wholly transparent manner enabling the complainants to participate appropriately. The modalities adopted were to help in future efforts at investigations aimed at truth, justice and reconciliation. The Strengthening of the HRC Regional office The regional office had to be strengthened to service the regional Committee and implement the programme. The activities would include technical assistance through international UN volunteers and a Training Programme which builds up capacity to deal with the special problems in the emerging situation as well as activities in the special programme. The Centre for the Study of Human Rights and the Human Rights Education Programme The Commission also planned to assist in the establishment of a Centre for the study of Human Rights in the University of Jaffna with functions similar to the centre in the Colombo University but adapted to the special needs of the Jaffna region. The centre will also be able to undertake studies of human rights problems in the region. Reactivating Civil Society for the Protection and Promotion of Human Rights This activity included the development of a network of NGO s who will be involved in the programmes undertaken in collaboration with the UNICEF and UNCHR for the protection of the rights of IDPs children and women; in activities such as the participatory surveys and situation analysis of human rights at the community level; monitoring of school drop-outs with community participation. The Commission planned a programme of public seminars with the participation of distinguished foreign invitees who will share with the Jaffna people the
22 international experience of human rights as well as the experience of conflict resolution, reconciliation and protection of human rights in other situations such as South Africa, Northern Ireland, Vietnam and Cambodia. The programme also hoped to mobilize target population groups to define their own perception of rights and prepare instruments such as charters of rights as was done in the South African situation. The integrated programme for Jaffna will have special relevance for the Eastern Province and will therefore be adapted and replicated for that province after it has been implemented in Jaffna for a sufficient period to provide the experience and knowledge and human and other resources needed for such replication. It was not possible to finance this programme under the normal budget of the HRC which was inadequate even for the routine functions that were being undertaken by the Commission. The Commission therefore negotiated with the UNDP to obtain finances from savings that were available from the main UNDP project for the review of legislation. The Project on Human Rights for All the protection of Minority Rights In the middle of 2002, the European Union expressed its willingness to make funds available under its short term programme for any special activity that the Commission would undertake in connection with the peace process. The Commission was glad to seize the opportunity that was offered and prepared a project proposal entitled Human Rights for all. A considerable part of the work of the Human Rights Commission relates to the violation of human rights arising out of the conditions created by the long-standing ethnic conflict in the country. The Human Rights Commission has conducted special investigations and issued two reports on eruptions of communal violence involving the Sinhala, Muslim and Tamil communities. In its report on the Mawanella incident, the Commission has recommended that Government responds to the initiative taken by the international community in Durban 2001 for developing a plan of action for protecting and promoting the human rights of victims of racism, racial discrimination, religious intolerance and other violations of the rights of minorities and disadvantaged groups. Several elements of the Durban Declaration and Programme of Action particularly those dealing with minority rights have special relevance in the current situation in Sri Lanka. The ceasefire and ongoing negotiations between the LTTE and the government have created space for an initiative around minority rights in this country. The conflict erupted as a result of the denial of minority rights. If the country is to evolve a sustainable and long term peace then the human rights of all minorities, ethnic and other, would need to be respected, promoted and realized. The
23 pattern of the distribution of ethnic and religious groups is such that ethnic and religious minorities are present in all parts of the country and national minorities enjoy the status of regional majorities in certain areas. A climate of inclusiveness would need to be created that would facilitate the participation of all groups in the processes of decision-making and development in all parts of the country. A pervasively majoritarian approach to democracy by the majority community has led to a denial of the rights of ethnic and political minorities and violent suppression of democratic protest and struggle. Equally the minorities in asserting their rights have tended towards exclusiveness and resorted to violent suppression of the rights of opponents and other ethnic groups in the regions in which they are in a majority. It is in this context that the Sri Lankan Human Rights Commission developed a programme to address some crucial issues pertaining to the rights of minorities, and promote the respect for diversity and pluralism. The proposal included (i) a series of dialogues at different levels in all districts of the country on the issue of minority rights in the context of the ongoing peace process. These were to be held within a period of six months, (ii) A supportive media programme to communicate the relevant messages, (iii) strengthening the regional infrastructure by the formation of regional committees to mobilize regional level participation in the project, and (iv) within the main programme, a more integrated effort at protecting and promoting human rights and minority rights in the multiethnic Eastern Province. The Programme had to be implemented within a programme of six months to comply with the conditions of disbursement that were attached to the grant. The project was successfully completed within the period stipulated. 125 dialogues were organized at the Divisional level close to the local community with groups of about 60 persons representing a cross section of the local community, including NGOs and government officials. 5 Divisions were selected from each of the 25 Districts in the country; these dialogues applied the international norms relating to minority rights in the local situations, diagnosed problems within their community and produced a mini-charter for the protection of minority rights within their community. The Divisional dialogues were followed by 25 dialogues at which the outcomes of the Divisional dialogues were discussed and recommendations made for action at the District level. The dialogues ended with a national convention which produced a Declaration. See Annexes 7.1, 7.2 and 7.3 14. The media component produced 13 short five minute filmlets on selected incidents of ethnic and religious conflict in different parts of the island. These were telecast and discussed in one hour programmes in TV chat shows. This work was done by the YATV. The chat shows were produced and telecast by ITN. In addition an 8 part TV documentary - drama was produced by the reputed film director Tissa Abeysekera. A TV programme for children celebrated the multi- 14 Vide pages 98, 99 and 100