The International Commission for Jurists (ICJ) considers the government’s proposed bill to establish a Commission for Truth, Unity and Reconciliation unlikely to advance accountability for perpetrators and justice for victims and survivors of the 26-year-long armed conflict that ended in 2009 and involved widespread atrocities. 

Issuing a statement, the ICJ said it is concerned that the lack of consultation with victim communities and the continued neglect of their demands deprive the Bill of legitimacy. 

A draft Bill on the Commission for Truth, Unity and Reconciliation was gazetted on 1 January 2024, to establish the Commission, amidst a climate of impunity for past human rights violations and abuses and intimidation of victim communities in the North and East of the country.  

“Considering the repressive political climate in Sri Lanka, and the absence of the conditions that are necessary to ensure the success of the proposed Commission for Truth, Unity and Reconciliation, the Bill appears to be more of a legislative manoeuvre aimed at deflecting the attention of the Human Rights Council and removing Sri Lanka from further scrutiny rather than a genuine accountability measure,” said Melissa Upreti, ICJ’s Asia Director.    

The ICJ further notes that the Bill suffers from a lack of transparency regarding the consultation process and non-acceptance by victim communities.  

If adopted, it would empower the Attorney-General to prosecute cases where the Commission makes a finding of responsibility for an offence. The ICJ is concerned that in the past the Attorney-General’s office has assumed potentially conflicting dual roles of legal advisor for the State and prosecutor of offences allegedly committed by State officials. The ICJ has previously noted how the Department had mishandled cases relating to serious human rights violations and abuses which has contributed to a climate of mistrust. The ICJ recalls that the years since the end of the conflict have been marked by near total impunity for conflict era crimes, owing to the failure of the Attorney-General’s Department to act to hold to account those responsible for serious crimes under international law. 

The Bill provides that appointments to the Commission will be made by the President upon the recommendation of the Constitutional Council. The ICJ has previously noted that the governing party holds a majority in the Constitutional Council and that a majority of members are parliamentarians with only three  members appointed from outside. Further, a representative of the smaller political parties (including parliamentarians representing the North and East) is yet to be appointed to the Council. The ICJ is concerned that these arrangements are conducive to creating a Commission that lacks independence and may be subjected to political pressures and considerations in carrying out its work.  The situation is exacerbated by the Constitutional Council approving the appointment of the current Acting Inspector General of Police who had in December 2023 been held directly responsible for torture by the Supreme Court of Sri Lanka. 

The Bill would further authorize the proposed Commission to seek the assistance of the police to conduct investigations and liaise with the National Authority for the Protection of Victims of Crime and Witnesses, which in turn depends on the police to provide support for the protection of victims and witnesses. However, a number of police officials have allegedly been responsible for recent cases of torture and ill-treatment and extra judicial killings. The government’s failure to initiate thorough and impartial investigations into these cases and to bring perpetrators to justice has deepened the public’s mistrust of the police and prosecuting agencies, Upreti said.

Successive UN Human Rights Council Resolutions on Sri Lanka have called for the establishment of transitional justice mechanisms with the active participation of all stakeholders, including women who have been at the forefront in leading victim demands for accountability, particularly for cases of enforced disappearance. Yet, protesting mothers and female family members of the disappeared are routinely detained, intimidated or put under surveillance and their voices suppressed. 

Upreti also pointed out that the Bill lacks provisions that are gender responsive and makes the establishment of mechanisms and procedures to address women’s concerns discretionary. 

Existing transitional justice institutions such as the Office of Missing Persons (OMP) and the Office for Reparations have been ineffective. As underscored by the UN Office of the High Commissioner for Human Rights, the OMP has failed  to earn the trust of victims and their representatives.  As recently  observed by the High Commissioner, there has been little to no development regarding cases of past human rights violations and abuses. 

“The victims of Sri Lanka’s 26-year armed conflict, replete with atrocities, have been forced to wait too long to learn the truth about their loved ones and to be granted justice. When the UN Human Rights Council considers a new resolution on Sri Lanka later this year, it must avoid blind acceptance of Sri Lanka’s flawed transitional justice process and institutions and adopt an approach that genuinely puts the interests of victims and survivors first,” added Upreti. 

Background

The draft Bill provides for the establishment of the Commission with a Head Office based in Colombo and Regional Offices as necessary (clause 2). The Commission will have between seven to twenty-one members, who are to be appointed by the President upon recommendation by the Constitutional Council (clause 3). The term of the Commissioners is five years (unless removed earlier) and the President can extend their term on an yearly basis for an additional two years (clause 9). The Commission may conduct public or closed sittings as necessary (clause 7).

The stated objectives of the Commission are to investigate, inquire and make recommendations in respect of complaints or allegations or reports relating to damage or harm caused to persons or property, loss of life or alleged violation of human rights which occurred during the conflict in the Northern and Eastern Provinces between 1983 to 2009 or connected to such period or its aftermath and has a mandate to promote truth telling and make recommendations for reparations, and non – recurrence (clause 12). If it appears to the Commission that an offence under any Sri Lankan law has been committed it may refer the matter to the relevant law enforcement or prosecuting authorities for further investigation and necessary action (clause 13 (zd)). The Commission does not have the mandate to determine civil or criminal liability of any person (Clause 16 (1)) and instead the onus is on the Attorney-General to institute criminal proceedings regarding an offence in Court based on material collected by the Commission (clause 16 (2)). 

The Bill also provides for the establishment of a Victim and Witness Protection Division (clause 28) and a Data Management Division (clause 29). The Commission may also appoint any mechanisms and procedure to address requirements related to women, children, persons with disabilities and disadvantaged groups and advisors relating to specific issues (clause 30). 

The Bill also provides for the appointment of an advisory panel to advise the Commission on matters referred to the Panel (clause 32). This panel is to consist of a minimum of ten members appointed by the President on the Commission’s recommendation. Clause 39 of the Bill states that within one month of the interim report of the Commission being published the President shall appoint a monitoring committee to implement the findings of the report. Clause 40 states that such Committee be comprised of 11 members, of which six members are to be recommended by the Constitutional Council while the others are members ex-officio. Ex-officio members include the Secretaries of the Ministries of Defence, Justice, Law & Order, Finance, Public Administration & Women, Child Affairs and Social Empowerment or their nominees.  The Committee is expected so submit bi-annual plans evaluating the implementation of recommendations of the TUR Commission and other previous Commissions of Inquiry. 

Clause 49 of the Bill states that the Commission can defer its investigation regarding any disappearance of a person/s if requested to do so by the OMP until such time it can be resumed without compromising inquiries conducted by the OMP.

In September 2023, the ICJ joined eight other international human rights organizations in expressing their grave reservations  about the proposed Truth, Unity and Reconciliation Commission and setting out prerequisites to be addressed before appointing any new Commission. The concerns relate to Sri Lanka’s legacy of failed commissions, lack of a conducive environment and confidence building efforts, lack of meaningful consultations with victim communities, the failure of domestic transitional justice institutions, and the blocking of prosecutions. None of these concerns have been addressed to date, which bring into question the newly proposed Commission’s likelihood of serving as an effective mechanism for accountability. (NewsWire)

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The International Commission of Jurists (ICJ) states it is concerned that the newly proposed Online Safety legislation, if adopted in its present form, would serve to crush free expression and further contract an already shrinking civic space in Sri Lanka.

On 18 September 2023, the Ministry of Public Security gazetted a bill titled “Online Safety” intended to dramatically regulate the content of online communication, including by the general public.

Issuing a statement, the ICJ says it considers that several provisions of the bill would serve to undermine the exercise of human rights and fundamental freedoms in the country, including freedom of information and expression.  Of particular concern are provisions related to the setting up, appointment and functions of an Online Safety Commission and other experts, the vague and overbroad wording of conduct designated as punishable offences and unnecessary and disproportionate punitive sanctions.

“While the spread of online hate-speech and disinformation need to be tackled, this bill is deeply flawed in its design and would be open to abuse by the Sri Lankan government, which has persistenty failed to uphold freedom of expression,” said Ian Seiderman, ICJ’s Legal and Policy Director. “It risks being used to suppress important public debate regarding  the conduct of the government and matters of public policy,” he added.

The Bill would establish an “Online Safety Commission” that would act to: “prohibit online communication of certain statements of fact; prevent the use of online accounts and inauthentic online accounts for prohibited purposes;  make provisions to identify and declare online locations used for prohibited purposes in Sri Lanka and to suppress the financing and other support of communication of false statements,” as well as other unspecified matters.

The Bar Association of Sri Lanka has called for the immediate withdrawal of the bill and for the adoption of a process of meaningful consultations with all relevant stakeholders prior to gazetting bills which ‘have a serious impact on the community at large.’

“The current draft fails to adhere to the principles of legitimacy, necessity and proportionality required for any State activity that restrict rights. It must be withdrawn or amended to be brought in line with Sri Lanka’s international human rights obligations guaranteeing freedom of expression, opinion, and information.” Seiderman added.

The ICJ considers that the Bill should not be evaluated in a vacuum, but instead must be read in conjunction with existing and proposed legislation that threaten human rights. Such laws include the extremely misused ICCPR Act of 2005, the Prevention of Terorrism Act (PTA), the Bureau of Rehabilitation Act, and the proposed Anti-Terrorism law which seeks to replace the PTA. This body of legislation, taken together, fosters a chilling effect on the exercise of fundamental freedoms restricting civil society while unduly expanding the reach of the security state.

Article 14 (1) (a) of the Sri Lankan Constitution gurantees the freedom of speech and expression. Article 19 of the International Covernant on Civil and Political Rights, to which Sri Lanka is a party, affirms the right to freedom of expression and opinion.

In July 2018, the UN Human Rights Council adopted by consensus a resolution  affirming that “the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.” (NewsWire)

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The International Commission of Jurists (ICJ) has welcomed the determination by the Supreme Court of Sri Lanka regarding the constitutionality of the private member’s bill entitled Penal Code (Amendment) Bill 2023 whose stated objective is to repeal “provisions that make sexual orientation a punishable offence”. 

The ICJ said in a statement that the Bill had been challenged by three petitioners who sought a determination by the Supreme Court that the Bill was inconsistent with provisions of the Constitution relating to Sovereignty, Fundamental Rights and Directive Principles of State Policy and that it required the approval of a two-thirds majority in Parliament and the approval of the People at a referendum. 

Petitions in support of the Bill were also filed by a number of interveners, such as civil society organizations working to advance the human rights of lesbian, gay, bisexual and transgender (LGBT) persons in Sri Lanka, academics, and activists, including Professor Savitri Goonesekere who had previously served as a member of the Committee on Elimination of Discrimination against Women (CEDAW) and Dr. Radhika Coomaraswamy, who had formerly been a United Nations Under-Secretary-General and the Special Representative on Children and Armed Conflict.

The Supreme Court in its 43-page determination, which was presented by the Speaker to Parliament on 9 May 2023, stated that neither the Bill as a whole nor any clause therein was inconsistent with any provision of the Constitution. 

The Supreme Court heavily relied on Indian and South African jurisprudence, among others, regarding the decriminalization of consensual same-sex sexual relations, especially case law focusing on the human rights to dignity, equality, equal protection of the law without discrimination, and privacy of the individual.

The Supreme Court was of the view that “the decriminalisation of sexual activity amongst consenting adults irrespective of their sexual orientation only furthers human dignity and as such this cannot be considered as being an offence that must be maintained in the statute book.”

“The Sri Lankan Supreme Court has rightly held that the human rights of LGBT persons would only be strengthened through the repeal of the two Victorian-era provisions (for more information on this, see background section below) criminalizing consensual same-sex relations between adults, which is the objective of this proposed Amendment,” said Mandira Sharma, ICJ’s Senior International Legal Adviser.

The Supreme Court noted that none of the submissions made by the Petitioners, including that: “LGBT movements may promote their programmes in schools and impact the free decision making of school children and give rise to Transgender Children”; that “the amendment would dilute Rule of Law and risk life and liberty of citizens”; and that “decriminalization would lead to an increase in the number of persons infected with HIV and Aids”, was supported with proper evidence. 

Instead, with respect to each of these submissions, the Supreme Court found the very opposite had been proven. The Court went on to find that the abovementioned submissions by the petitioners were “fanciful hypotheses, and have no merit”.

The Court further noted that “the provisions of the Bill would, in fact, ensure that all persons shall be equal before the law and be entitled to the equal protection of the law, irrespective of their sexual orientation and that the Bill would, in fact, enhance their fundamental rights guaranteed to them under the Constitution and enable them to live in a society with dignity.”

“The Supreme Court has firmly positioned itself in support of the human rights and dignity of those who have been marginalized for over a century, it is now time for the Parliament to show that it is equally capable and willing to uphold human rights and ensure compliance with Sri Lanka’s obligations under international human rights law,” Sharma added.

Sections 365 and 365A of the Sri Lankan Penal Code of 1883 criminalize “carnal intercourse against the order of nature” and “acts of gross indecency”, respectively. Although the Penal Code does not provide a definition of these terms, both sections have been used to criminalize people simply on the basis of accusations of consensual same-sex sexual relations. Those convicted of these “crimes” face imprisonment from two to 10 years and a fine.

On 24 August 2022, Attorney at Law Premnath Dolawatte, a Member of Parliament representing the ruling party in Sri Lanka, handed over a private members bill to President Ranil Wickremasinghe to amend the Penal Code provisions that criminalize consensual same-sex relations between adults. The President subsequently announced that the government would not take action to block the Bill.

A revised version of the Bill was gazetted on 23 March 2023. The Bill was presented to Parliament on 4 April 2023. With the determination by the Supreme Court regarding the Bill’s constitutionality, the Bill now requires a simple majority in Parliament to become law. (NewsWire)

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