S W R de A Samarasinghe
May 2009, hopefully, could be a major watershed in Sri Lanka’s human rights history. The conclusion of the war with the LTTE in itself should help improve human rights in the country for more than one reason. First, war-related deaths – an estimated 80,000 to 100,000 died in the conflict – have come to an end and the right to life is the most basic of human rights. Second, the war resulted in the enactment of laws and regulations that would not be acceptable in a democracy in normal times. The Prevention of Terrorism Act (PTA) was originally enacted in 1979 for three years and was made permanent in 1982 to fight terrorism. It has provisions such as the right of police to arrest, search and seize without a warrant, the power to detain a person under ministerial order that cannot be challenged in a court of law and several other such provisions that do not conform to police and judicial practices in a democracy. The country has been under emergency rule for much of the time from July 1983. Now that terrorism has been defeated it will be hard to justify such laws when peace returns. Third, in some quarters the war was used as a cover or the fight against terrorism was used as a convenient excuse to undermine human rights. That will be harder to do in the future.
But the month also will be remembered for the intense violence that the concluding phase of the war generated in a narrow patch of sea coast in the north-east of Sri Lanka. There is no need to recount here the details of the battles that were fought. From a human rights perspective the major issue concerned civilian casualties. First some facts not in serious dispute. The LTTE used tens of thousands of civilians as a human shield. In late April the Sri Lankan forces publicly assured the international community that it would not use heavy weapons to dislodge the remaining LTTE fighters who were holed up together with the civilians in a few sq km of land. But beyond this the facts are in dispute. The government is adamant that it kept its promise and accused the LTTE of firing heavy artillery to blame the government and to prevent the civilians escaping. But this was disputed by the LTTE. The government has adamantly maintained that what it did was to mount a massive “rescue” effort to free those held forcibly by the LTTE. Some members of the international community have claimed that both parties continued to use heavy weapons disregarding the welfare of the civilians.
There is also considerable dispute over the number of civilian deaths in the final few weeks of the war. The government maintains that casualties were few in number. But estimates ranging from about 7,000 to as many as 20,000 have also been mentioned. What is clear is that most of the claims, denials and counter-claims probably have partisan motives and bias. In all likelihood the truth will never be ascertained. A special session of the United Nations Human Rights Council (UNHRC) in Geneva was convened at the request of Germany made on behalf of some mainly western and Latin American member nations to discuss Sri Lanka. However, the resolution sponsored by them calling for Sri Lanka to investigate the abuse of human rights and violation of humanitarian law and to allow aid agencies freer access to IDP camps was not even take up for discussion. AS few prominent international human rights organizations such as Human Rights Watch and Amnesty International also supported the resolution. Sri Lanka strongly opposed the resolution and presented a counter resolution that, inter alia, drew attention to the principle of non-interference in the internal affairs of member countries and urged the international community assist Sri Lanka to provide humanitarian aid to IDPs. The Council passed this resolution without amendments 29 to 12 with six abstentions. It was notable that the countries that backed Sri Lanka were, with the exception of the Russian Federation, exclusively from the developing world and every western member country voted against the resolution.
The conditions under which about 275,000 IDPs live in camps in Vavunia have also given rise to human rights concern. The government strongly asserts that it is doing its best under difficult circumstances and with few resources. The government also justifies the strict security measures in the camps as a necessary precaution to weed out LTTE cadres who may mingle with the civilians. Several prominent international officials including the UN Secretary General who visited the camps in May have generally accepted the position of the government while pointing out the need for improvement of facilities and the importance of quick resettlement of the IDPs in their home villages. But critics of the government, notably some western countries who wanted an independent investigation of the conduct of the last phase of the war and voted against Sri Lanka at the UNHRC meeting and international human rights groups, point out that the camps are in effect detention centres that deny freedom of movement to the IDPs. They also note that access to INGOs and NGOs have been restricted and the media is not allowed free access to report on the conditions in the camps. They see these as violations of international humanitarian law and restriction on human rights.
Outside the war area human rights violations in the form of killing, abduction, disappearance and arrest that appeared to be arbitrary or politically motivated continue to be reported in significant numbers largely from the north and east. These have become so common that they no longer command public attention. The exception in recent weeks was the abduction of the prominent journalist Poddala Jayantha who was beaten up and dumped in an isolated place by his abductors. Harassment, physical torture and killing of journalists have become quite common in the past three years. The negative human rights implications of these incidents go beyond the violation of the rights of one individual to undermining media freedom in the country.
Finally, President Mahinda Rajapakse in his address opening the fourth session of the parliament asserted that “We have removed the word minorities from our vocabulary three years ago. No longer are the Tamils, Muslims, Burghers, Malays and any others minorities. There are only two peoples in this country. One is the people that love this country. The other comprises the small groups that have no love for the land of their birth. Those who do not love the country are now a lesser group.” If the government actually follows this policy of not recognizing ethnicity it would imply a paradigm shift in the way that human rights are complied with in this country. Ethnic group rights will no longer be of any consequence. The question of ethnic quotas in employment, university admissions and ethnic representation in commissions, boards, and other official bodies will be a thing of the past. Indeed all rights will be ethnicity blind. Theoretically, even devolution is of no consequence because devolving power to satisfy ethnic aspirations is moot in such a scenario. In other words the country will have to transit to a classic liberal individual rights framework. This should bring cheer to those who believe in liberal democracy. It will be interesting to watch if this is really possible in a country where ethnic divisions run deep and have been further strengthened by a quarter century of bloodletting and the political culture is anything but liberal.