Emmerson’s Hard Hitting Statement Puts Govt. On Back Foot

by Our Political Correspondent

Picture by Lalith Perera

A hard-hitting statement issued by the United Nations Special Rapporteur on the promotion and protection of Human Rights and Fundamental Freedoms while countering terrorism, Ben Emmerson, on Friday put the government on the back foot.

Speaking to reporters on Friday at the end of a visit to Sri Lanka, Emmerson said that two years on since the current government took office and four months into a two-year extension granted to the Government by the Human Rights Council, progress in achieving the key goals set out in the Resolution on Sri Lanka adopted by the Council was not only slow, but seems to have ground to a virtual halt.

“None of the measures so far adopted to fulfil Sri Lanka’s transitional justice commitments are adequate to ensure real progress, and there is little evidence that perpetrators of war crimes committed by members of the Sri Lankan armed forces are being brought to justice,” he said.

The Special Rapporteur said he was given a personal assurance by the Prime Minister that once the current process of counter-terrorism reform had been completed, the government would pass legislation paving the way for a Truth and Reconciliation Commission to be established, and set up an Office of the Special Prosecutor to bring criminal charges against those involved in the most serious atrocities committed on both sides of the conflict.

However he said these are, of course, steps which the government promised to the international community that it would have delivered in full by now.

“It is fair to say that there are some very slight indications of positive movement in this direction. During the Special Rapporteur’s visit, the Chief of the Army, Mahesh Senanayake, made a public commitment to ensuring that members of the armed forces who had committed crimes would be brought to justice; a senior Naval Commander was arrested for his alleged involvement in the disappearance of 11 people during the closing stages of the conflict, and the Special Rapporteur was assured by the Attorney General that if and when criminal allegations against the military finally reach his office, they will be prosecuted with the full force of the law. The Attorney General recognised that if Sri Lanka was to achieve lasting peace, then its law enforcement institutions must gain the confidence of all sectors of society, including the Tamil and Muslim minorities,” the end of visit statement by Emmerson said.

He said the indications fall far short of Sri Lanka’s international commitment to achieve a lasting and just solution to its underlying problems, for the benefit of all of its communities, to establish a meaningful system of transitional justice that is governed by the principles of equality and accountability, and to put in place essential and urgently needed reform of the security sector.

“Whilst an initial programme of amnesties was put in place, with individuals allegedly involved with LTTE being diverted to a substantial rehabilitation scheme, many have been put through the operation of the deeply flawed Prevention of Terrorism Act or PTA as it is known. This legislation was temporarily enacted as an emergency measure in 1979. It was then made permanent in 1982, and remains on the statute book today. Through exceptional provisions that admit the use of uncorroborated confessions made to police officers as the sole basis for convictions, it has fostered the endemic and systematic use of torture. Entire communities have been stigmatised and targeted for harassment and arbitrary arrest and detention, and any person suspected of association, however indirect, with the LTTE remains at immediate risk of detention and torture,” he said.

The Special Rapporteur is encouraged by the government’s recent adoption of a ‘zero tolerance policy’ towards to the use of torture; and by the appointment in July 2016 of a Committee to Eradicate Torture by the Police. In Sri Lanka, however, such practices are very deeply ingrained in the security sector and all of the evidence points to the conclusion that the use of torture has been, and remains today, endemic and routine, for those arrested and detained on national security grounds. Since the authorities use this legislation disproportionately against members of the Tamil community, it is this community that has borne the brunt of the State’s well-oiled torture apparatus.

In this context, the Special Rapporteur was extremely concerned to learn that 80 per cent of those most recently arrested under the PTA in late 2016 complained of torture and physical ill-treatment following their arrest, in cases which were later dealt with under ordinary criminal law. The Human Rights Commission emphasised that torture in custody formed a major priority in its work, and remains a pressing human rights concern. The most senior judge responsible for PTA cases in Colombo informed the Special Rapporteur that in over 90 per cent of the cases he had dealt with so far in 2017, he had been forced to exclude the essential confession evidence because it had not been given voluntarily – that is that it had been obtained through the use or threat of force.

During his interviews with current and former PTA detainees, the Special Rapporteur himself heard distressing stories of extremely brutal methods of torture, including beatings with sticks, the use of stress positions, asphyxiation using plastic bags drenched in kerosene, the pulling out of fingernails, the insertion of needles beneath the fingernails, the use of various forms of water torture, the suspension of individuals for several hours by their thumbs, and the mutilation of genitals.

In a number of instances brought to the attention of the Special Rapporteur, these allegations had either been supported by independent medical evidence, or accepted by the judiciary as the basis for excluding a confession at trial.

Despite the shocking prevalence of the practice of torture in Sri Lanka, the Special Rapporteur notes the lack of effective investigations into such allegations. In response to a request for the most recent official statistics, he was informed that only 71 police officers had been proceeded against for torturing suspects since available records began. He notes that the Human Rights Commission is now routinely informed when an individual is detained under the PTA and has unfettered access to all places of detention. However, in a system that is premised on obtaining convictions by confessions, this, and other safeguards, have proved entirely insufficient to protect suspects against this most cowardly of international crimes.

“The significance of the systemic use of torture to obtain confessions needs to be seen against the deplorable delays that are built into the framework for the handling of cases under the PTA.  Through a combination of extended executive detention, and grossly protracted criminal proceedings, suspects arrested under the PTA have commonly been held in detention, in conditions that amount to inhuman and degrading treatment, for many years without ever having been found guilty of anything, and without any effective judicial review of their detention,” he said.

The Special Rapporteur met a significant cross section of individuals detained under the PTA whose length of detention ran into double figures. On requesting official figures for those currently charged with offences under the PTA, he was given statistics from which it is apparent that out of 81 prisoners currently in the judicial phase of their pre-trial detention, 70 had been in detention without trial for over five years and 12 had been in detention without trial for over 10 years. These staggering figures are a stain on Sri Lanka’s international reputation. Steps should be taken to release these individuals on bail immediately, or bring them to trial within weeks or months, not years or decades. This entire PTA system, as it has operated until now, and continues to operate in those current cases to which it applies, amounts to a flagrant denial of justice.

The Special Rapporteur called for the Government of Sri Lanka immediately to provide for effective judicial review of the legality of the detention of those still behind bars, and to submit individuals charged under the PTA to a fair trial with all guarantees of due process. He also calls on the Government to establish an effective mechanism for investigating all allegations of torture by the police, and for reviewing the safety of all past PTA convictions in which evidence of a confession to the police was central to the prosecution case.

Through Human Rights Council Resolution 30/1, adopted in 2015, the Government of Sri Lanka committed to repeal the PTA and to replace it with anti-terrorism legislation in accordance with contemporary international best practices. The Policy and legal framework of the proposed Counter-Terrorism Act of Sri Lanka, which has been approved by the Cabinet of Ministers, was shared with the Special Rapporteur prior to the commencement of his mission.

Many of those who spoke to the Special Rapporteur expressed dismay at the lack of ministerial, parliamentary or public consultation over the proposals. Indeed, even the Human Rights Commission has not been informed or consulted on the draft framework. Nonetheless, the present draft makes some significant improvements. Notably, it allows the Human Rights Commission unfettered access to individuals in detention and it abolishes the Attorney-General’s right of veto over the grant of bail. It creates an improved framework for administrative and pre-trial detention, with greater scope for independent judicial review.

However, there are a number of central flaws in the current framework draft which, if enacted, would guarantee the continued violation of the human rights of terrorism suspects. Foremost amongst these is a provision preserving the admissibility of confessions made to a police officer in custody. In a country with such a grave and widespread problem of torture and ill-treatment in custody, the only means by which counter-terrorism legislation could conform to international human rights standards would be the prohibition altogether of the use of confessions made to the police. That is the position under the general law in Sri Lanka, for good reason, and it should certainly be the position under counter-terrorism legislation, where the risk of torture is at its greatest.

There are problems too with the breadth of the definition of terrorism, which poses a real risk that the legislation could be used in circumstances very far removed from acts of real terrorism, or against minorities or human rights defenders in a discriminatory and sectarian manner. There are also serious problems with a number of the provisions of the framework draft directed at the gathering of evidence.

There are also important respects in which the draft legislation is under-inclusive and fails to deal with modern terrorism phenomena such as the prevalence of Foreign Terrorist Fighters in this part of the world.

The progress of this legislation to date has been painfully slow, and this has, in turn, delayed the wider package of transitional justice measures that Sri Lanka committed to deliver two years ago. It is difficult to resist the conclusion that this inertia reflects the continuing influence of certain vested interests in the security sector, who are resistant to change, and above all, to accountability.

“I am pleased to be able to announce today that the Government has undertaken to engage in a process of constructive dialogue with my mandate in an effort to improve the draft legislation before it is placed before Parliament.

There is still time to get this legislation right, and for it to become the cornerstone of a new order in Sri Lanka. The Ministry of Foreign Affairs has undertaken to consult with my team in Geneva within the next two weeks. The aim of this dialogue is to identify the flaws in the current draft, and to seek solutions for putting them right,” he added.

“When the two sides of the accountability equation are viewed side by side, the resulting picture is stark: The government has thus far done almost nothing to hold to account those members of the armed forces and security services who committed gross human rights violations during and since the conflict. At the same time, it has, until now, continued to operate the cruel and unjust PTA system, a system that has overwhelmingly impacted on the Tamil minority. These are precisely the conditions likely to produce festering grievances, to foster unrest and even to reignite conflict,” he said.

12 Comments for “Emmerson’s Hard Hitting Statement Puts Govt. On Back Foot”

  1. Kathiresan

    This is Srilanka a legal professor as a foreign minister was deadly opposed to any justice for the affected minority in Srilanka now a prominent lawyer as legal minister is opposed to any measures that will deliver some consolation justice to the minority in Srilanka through a UN mediated measure as minorities have been taken for rides successively by majority governments ever since independence from the British Colonial rule and the so called National Government cannot even remain united to fight corruption and alleviate poverty from the population because there are too many corrupted politicians on either side trying to protect each other to remain powerful forever and rich at the cost of public . If such educated people are deadly opposed to such measures just imagine how an uneducated unaware village person will react to these measures distorted and presented again by these politicians who will do it all the time.

  2. Noor Nizam

    I am NOT a sympathizer of the “YAHAPALANA” government, but I will not fail to commend the stand taken by our President Maithripala Sirisena and the Hon. Minister of Justice, Dr. Wijeydasa Rajapaksa.
    THESE ARE INTERNATIONAL BEGGARS UNDER THE DISGUISE OF CALLING THEMSELVES UN SPECIAL RAPPORTEUR ON HUMAN RIGHTS AND COUNTER TERRORISM WHO HAVE NO RIGHT TO CHALLENGE THE SOVEREIGNTY OF THE AUTHORITY OF THE PRESIDENT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA WHOSE DECISION HAS ALREADY BEEN ANNOUNCED THAT SRI LANKA WILL NOT ALLOW FOREIGN JUDGES IN ANY PROBES IN SRI LANKA VIZ-A-VIZ THE SO-CALLED UN GENEVA RESOLUTION TRYING TO MAKE A LIVING BY TRYING TO BULLY A SOVEREIGN STATE AND ONE OF THE OLDEST MEMBER OF THE FAMILY OF THE COMMONWEALTH. Ben Emmerson is a suspected sexual assault criminal. The former senior counsel on the national child abuse inquiry in England and Wales in the UK, Ben Emmerson QC, quit the independent inquiry into child sexual abuse (IICSA) in September 2016. He was paid £400,000-a-year in this post, when he was named in a BBC Newsnight programme after an inquiry worker revealed details of an alleged sexual assault in a lift. As the counsel of (IICSA), Mr Emmerson was paid £1,700 a day and worked 240 days in the financial year 2015-16, adding up to £408,000. His role was to guide the panel through the evidence, including cross-examining witnesses.The abuse inquiry, under the chairmanship of Prof Alexis Jay, which probed his criminal sexual assault on the inquiry worker, has repeatedly refused to release any further information about Emmerson’s departure. Using his “high profile links” this culprit has been able to sweep his crime under the carpet of the “Rule of Law” in the UK and relinquished his post before been brought before the “Rule of Law” in September 2016. HOW HE GOT THIS HIGH PROFILE ASSIGNMENT AGAINST SRI LANKA NEEDS A UN PROBE. This fellow may claim to have the best knowledge and background on Human Rights and Counter Terrorism reading books or law suites, but he has to go to school to former Defense Secretary Gotabaya Rajapaksa to really learn some practical knowledge and on the ground experience how to Counter Terrorism. I am sure that his encounter with our Hon. Minister of Justice, Dr. Wijeydasa Rajapakse would have given him better lessons of proper Human Rights. I do not know why the Government allowed these types of scoundrels to enter Sri Lanka under the disguise of being a UN Rapporteur and try to show their long arm of using UN Resolutions, when our President Mathripala Sirisena has already resolved that NO FOREIGN JUDGES will be entertained in any of the so-called inquiries on our brave security forces these rascals are trying to set-in-motion through the UN Geneva Resolution. I am NOT a sympathizer of the “YAHAPALANA” government, but I will not fail to commend the stand taken by our President Maithripala Sirisena and the Hon. Minister of Justice, Dr. Wijeydasa Rajapaksa who has stood his ground to tell these fellows that we in Sri Lanka mean real business when it comes to matters concerning our Security Forces, Ant-Terrorism and International Relations.
    Noor Nizam – Convener “The Muslim Voice”.

  3. Sangaralingham

    While higher up sleeping somewhere lower ranking individuals are doing worst thinks to public with collaboration of immediate superior often requesting bribe fees underhand from victims and families. No point complaining seem it a cooperative effort

  4. Sangaralingham

    No one in government has made any concerted effort to make things moving as one may say there may be intermediate not elected governments so called fake governments interfering correct approach to solve the problems or the government in power itself must take full blame responsibility or one may say irresponsible to solve the problems.

  5. P.Sooriaperuma

    I applaud the excellent report. I strongly agree that obtaining convictions on the basis of confessions made to the security forces under the PTA is deeply flawed and unjust. Particularly, in a country where torture in custody is a common practice. The Government is reluctant to repeal the draconian Act because of strong opposition from the top rung of the security forces and strangely some militant Buddhist monks. Some powerful and utterly corrupt politicians are making these monks to dance to their tune. The culture of impunity still prevails in Sri Lanka and the political and moral will is conspicuously absent to effect any meaningful changes. The ex president and members of his cabinet , and top brass in the Army and Navy who are alleged to be responsible for the war crimes and abductions of wealthy members of the ethnic minorities for ransom and murders are hell bent in placing obstacles in the path of the present government , preventing them from arresting and prosecuting the suspects.

  6. raj

    UN should also pay attention to the practice of recruiting Singhalese youth to become Buddhist monks before they reach 18 or completing their basic education. This no different from child soldiers or religious practices of Pakistan. Many kids in Pakistan are brainwashed and cannot think beyond religious ideology. Same thing happens in Sri Lanka too. People may not agree with this statement but if they view the matter from global perspective they will agree. Think about it at least even if you don’t agree

  7. Sira

    Why give microphones to these agents of LTTE and backer of ELLAM. Why dont they do some real work in Israel, Iraq, Afghanistan and Saudi Arabia? When are we going to have some real leaders in this country instead of puppets and homosexuals?

  8. Tuan

    The UN should start being serious and bring the issue up quick and Punish the war criminals.Judiciary is running according to whims and fancies of the Politician and if UN dont stand firm there wont be justice served for war crimes

  9. srilanka government has no place in world democratic place, Rajapaska government and mr srisena and prime minister are same fooling the people in many ways, education, law of land, communal has the first place but indian prime minister mr MODI recent visit to srilanka has very good woring for MrRajapasak family and foreign minister mr G L.Peris police army and navy official has done term Andes killing and collating money for to relies it was open business for forces ,srilanka minister of justice must remove forthwith,

  10. some official were arrested by the government, but later they will be relished by the adviser of the Buddhist monks ,presient says we never punishment our forces, president and prime minister a re cheating the whole world ,srilankan lost confidence . government corrupted and crime created by mr Rajapaska government was free from all his killing and destroyed the country economic, education law of the land ,minister of justice says not infer in srilanka matters, he is father of communal and good friend of family .mr Rajaspaska

  11. Sangaralingham

    Are we facing national and social disgrace

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