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SRI LANKAs NATIONAL ACTION PLAN FOR THE PROTECTION AND PROMOTION OF HUMAN RIGHTS 2011

AN ANALYSIS BY THE SRI LANKA CAMPAIGN FOR PEACE AND JUSTICE February 2012

CONTENTS

1.Introduction................................................................................................................3

2.Positives.......................................................................................................................4

3.Causes for Concern....................................................................................................5

- 3a.The Role of the HRC and grievance handling...................................................5 -3b.Participatory Democracy.....................................................................................5 - 3c.Freedom of Religion/Language Rights.............................................................6 -3d.Labour Rights.....................................................................................................7 -3e. Pledges Omitted..................................................................................................7 -3f.The Effectiveness of Committees........................................................................8

4.Conclusion.................................................................................................................9

5.Bibliography.............................................................................................................10

1.INTRODUCTION
The National Action Plan for the Protection and Promotion of Human Rights (NAP) is a five year action plan to promote and protect the fundamental rights guaranteed both under the Constitutional of Sri Lanka and the rights enshrined under international law. The document stemmed from a pledge made by the Government of Sri Lanka at the Universal Periodic Review before the UN Human Rights Council in May 2008. Eight Priority Areas were identified which consisted of: 1. Civil and Political Rights 2. Economic, Social and Cultural Rights 3. Torture 4. Children 5. Labour 6. Migrant Workers 7. Women 8. Internally Displaced Persons Despite listing a number of welcome objectives and strategies in some areas, an examination of the Action Plan has found that it seemingly prioritises top-down approaches towards human, political and civil rights and pays less attention to the benefits of bottom-up involvement and participation. As a result, basic yet crucial elements which should have been considered, such as the social and ethnic diversity of the population, are disregarded. Furthermore fundamental flaws in Sri Lankas approach to human rights, and both the constitutional framework and the ground realities of Sri Lankan governance mean that we should have little faith in the NAP to deliver real change in Sri Lanka. It should be seen in the context of a long line of similar such initiatives (the LLRC, various Presidential Commissions of Enquiry, the National Human Rights Commission, the Torture Act) who serve solely to stall international demands for effective reform.

2.POSITIVES
The Action Plan lists a number of welcome objectives and strategies. Most notable are that of the introductory statutory provision to ensure 30% minimum representation of women in Parliament,1 provincial councils and local authorities, amending the Penal Code to a create a criminal offence in regard to the causing of disappearances2 (something that was first promised in 2000) and the amendment of the Prison Regulations to ensure that accused persons and convicted persons are housed separately.3 Alongside these, a number of public awareness campaigns are also listed, including that concerning a campaign on elements of basic healthcare including remedies for medical malpractice. 4 On the surface this is a positive initiative particularly in light of the Central Hill Tamils who are known to undergo non-consensual sterilisation as a result (among other things) of poor health education. 5 However the value of such programmes must be questioned in light of how they are delivered, by whom they are delivered and moreover their content. An inter-ministerial Committee on Human Rights is also spoken of, in order to coordinate matters relating to human rights issues between the Ministry in charge of the subject of human rights and other ministries, departments and statutory bodies. 6 Witness protection legislation7 is mentioned. The age of criminal responsibility8 is also recognised as being too low, which is said to be addressed by undergoing a consultation process which would aim to establish a more suitable age. Another means to address childrens rights is said to be through their entrenchment within the Constitution.9

1 2

National Action Plan 2011 p.75 Ibid p.28 3 Ibid p.33 4 National Action Plan p.47 5 Please see the three part series on the Hill Tamils by the Sri Lanka Campaign for Peace and Justice on our website. The section concerning sterilization titled Demographic Engineering by the Government of Sri Lanka: Is this Eugenics? may be accessed here: <http://blog.srilankacampaign.org/2011/12/demographic-engineeringby-government.html> (last accessed 06.02.2012) 6 National Action Plan p.5 7 Ibid p.29 8 Ibid p.117 9 Ibid p.122

3. CAUSES FOR CONCERN


3a.The Role of the NHRC and grievance handling According to the Action Plan, the mandate of the National Human Rights Commission (NHRC) must be strengthened; however suggestions for improvement have been vague and will most likely be ineffectual. For example, a key performance indicator in achieving this objective is to establish a web based complaints mechanism,10 which would be judged on effectiveness based on the number of hits per day and the number of complaints received. Yet poor and displaced persons are unlikely to have internet access and given the Sri Lankan culture of censoring and compromising the confidentiality of the internet many will be reluctant to use it to raise complaints. A 24 hour hotline is also advocated to address this issue; however there must be a conscious effort to employ Tamil speaking people in order for this to truly have a chance of effect. Furthermore, this is ineffective to those internally displaced people without electricity or adequate housing. 3b.Participatory Democracy Ensure participatory democracy by establishing a standard procedure requiring Government agencies to consult with civil society, vulnerable groups and relevant stakeholders in developing national laws and policies.11 There must be adequate communication between minorities and Sinhalese majority Government officials for this objective to be achieved. Here the issue of membership of committees, or those delegated research responsibilities is vital. How can vulnerable groups gain trust from government agencies and how may they feel secure enough to share their concerns? The National Action Plan wrongly assumes that vulnerable groups will willingly share their thoughts when there are (a) communication barriers and (b) a lack of trust. -Amend Standing Order of Parliament so as to require the Secretary General of Parliament to mandatorily place all bills of Parliament on the Parliament website and provide a mechanism for public comment. Provide for a minimum period of time between the gazetting of a bill and placement of the bill on the website and the second reading of the bill1210 11

National Action Plan p.14 Ibid p.10 12 National Action Plan p.9

The majority of displaced and poor people, usually from minority groups do not have access to internet facilities. In practice this mechanism may only invite the suggestions of the wealthy. Furthermore, there is no guarantee that suggestions or thoughts may be taken into account. 3c.Freedom of Religion/Language Rights To promote via administrative action and the Draft Bill of Rights 13(paraphrased) - Although the revised incorporation of language and religious rights within the Bill of Rights is necessary, it is important to note that a greater concern is the lack of education about varying cultures and religions and the entrenchment of ethnic division this creates. This kind of education should be made mandatory to all within full-time education. Additionally, although the Action Plan states that free legal advice is one of the only mechanisms to aid access to justice for IDPs, this is only beneficial if IDPs can communicate efficiently. No mention is made of Tamil lawyers and legal professionals.14 Indeed a report by Groundviews has found a trend of talented Tamil lawyers leaving Sri Lanka for other countries due to a lack of work.15 3d.Labour Rights There is no mention of the minimum wage; however, attention is drawn to the informal working sector16 alongside that of ensuring equal pay for work of equal value. 17 Key performance indicators are dependent upon results of respective studies which may take up to two years.18 This is vague and shows no guarantee of positive action being taken in the very near future, despite the aforementioned issues being of huge concern within Sri Lanka at present. The National Action Plan makes no mention of alleviating working conditions of labourers. The Central Hill plantation workers face poor working conditions and administrative

13 14

Ibid p.34 Please see National security in post-war Sri Lanka: Womens (In) security in the North by GroundViews, 25 Apr, 2011 at <http://groundviews.org/2011/04/25/national-security-in-post-war-sri-lanka-womens-insecurity-in-the-north/> 15 Ibid 16 National Action Plan p.80 17 Ibid p.80 18 Ibid

discrimination daily, alongside being "tethered" to their working environment no mention is made of the fact that this is effectively slavery. Despite tea being one of the most valuable economic exports and tea plantation workers being among the most deprived and most frequently abused group, this sector is not mentioned at all. Studies in to this situation have already been conducted by national legal aid organisations, such as the Home for Human Rights and by the Sri Lanka Campaign.19 As a significant proportion of workers are either illiterate or unable to speak Sinhala or English, it is imperative that Tamil speaking individuals carry out most of the field research in this regard.

3e.Pledges Omitted20 The National Action Plan has seemingly neglected a pledge to amend the Penal Code to exclude the application of penal sanctions to homosexual conduct engaged between consenting adults at non-public locations.21 It has also dropped a promise to amend Chapter 3 of the Constitution to include a Constitutional definition of the right to information, subject to appropriate restrictions as recognized by applicable international human rights law.22

The President holds a significant amount of power in regards to the appointment of commission members, magistrates, judges and other public officials. The National Action Plan is heavy on giving such individuals responsibility, but no mention is made of how their appointment may be made either democratic or transparent.

19

Please see Women as Objects of Control: An Examination of Health, Reproductive Health, and Coerced Sterilization in Sri Lankas Plantation Sector The Home for Human Rights, December 2010, and Working Conditions of the Central Hill Tamils: The Ungrateful Tea Plantation Sector by the Sri Lanka Campaign for Peace and Justice accessible at <http://blog.srilankacampaign.org/2012/01/working-conditions-of-centralhill.html/> last accessed at 06.02.2012
20

Courtesy of Watered down version of National Action Plan for Human Rights to be presented in Geneva UN by Transcurrents 25 December 2011, accessible at <http://transcurrents.com/news-views/archives/6920 > last accessed 06.02.2012 21 Transcurrents Ibid 22 Ibid

3f.The Effectiveness of Committees The National Action Plan refers extensively to Committees to conduct studies upon specific issues (for example torture). However the 18th Amendment passed in 2009 severely undermines their effectiveness by virtue of the exclusive powers of appointment and removal resting within the hands of the President. Today, Mahinda Rajapaksa has the power to appoint the Chief Justice and Judges of the Supreme Court of Appeal, alongside the Chairman and members of Commissions who remained independent prior to the Amendment.23 Most notably, the President may construct the membership of the Human Rights Commission. Currently Mahinda Rajapaksa has appointed a significantly large number of his own family into notable positions. A transparent appointment process and a conscious and visible effort to include members from minority groups is essential if the work of commissions, inquiries and studies are to be truly taken seriously. Until such time as that is in place no number of new committees will make any difference.

4.CONCLUSIONS
Interestingly the National Action Plan does not incorporate the aim of the LLRC report in striving to make Sri Lanka a trilingual state. This is worrying particularly because the National Action Plan objectives provide ample opportunity for language deficiencies to be addressed, which could have positive implications towards combating alienation and marginalisation of minority groups in decision making and moreover the realisation of human, civil and political rights. It is time that such public documents and plans recognise the diversity of Sri Lanka and tailor their objectives and solutions to Sri Lankas unique demographic rather than ignoring the differences as the National Action Plan has unfortunately demonstrated. The notion that all citizens may have access to the internet and other technology is also an erroneous assumption. Rather than expecting citizens to go out of their way to voice grievances on websites which most likely will not be addressed, a better approach would be to allow for consultation at a grassroots level.

23

Please see,New Powers for Sri Lankas President by Jonathan Miller, Wednesday 08 September 2010 accessible at <http://www.channel4.com/news/new-powers-for-sri-lanka-president>last accessed 06.02.2012

An addition all these measures effectiveness is undoubtedly limited when one considers the likely membership of Committees and Commissions. To address this, there must be a transparent appointment procedure of members, without overwhelming power being concentrated within the hands of the President. There must also be a conscious effort to ensure that minorities receive compulsory and adequate representation. Furthermore access to justice for IDPs and members of other vulnerable groups must be addressed via the involvement of Tamil speaking attorneys. It is therefore unfortunate that the promise of the National Action Plan is minimal at best. Without significant erosion of the extensive powers of the President, it is unlikely that most of the suggestions and objectives outlined may hold significance to those affected. It is furthermore imperative that the Government of Sri Lanka realises the uniqueness of the Sri Lankan population today, if it is to have any real hope of addressing its human rights deficiencies.

REFERENCES
Please see the following for further information on the issues mentioned: New Powers for Sri Lankas President by Jonathan Miller, Wednesday 08 September 2010 accessible at <http://www.channel4.com/news/new-powers-for-sri-lanka-president> Watered down version of National Action Plan for Human Rights to be presented in Geneva UN by Transcurrents 25 December 2011, accessible at <http://transcurrents.com/news-views/archives/6920 > Women as Objects of Control: An Examination of Health,Reproductive Health, and Coerced Sterilization in Sri LankasPlantation Sector The Home for Human Rights, December 2010, Proposed 18th Amendment To The Sri Lankan Constitution (Full Text) courtesy of the Sunday Leader, accessible <http://www.thesundayleader.lk/wpcontent/uploads/2010/09/Proposed-18th-Amendment-to-Sri-Lanka-Constitution.pdf> National security in post-war Sri Lanka: Womens (In) security in the North by GroundViews, 25 Apr, 2011 at <http://groundviews.org/2011/04/25/national-security-inpost-war-sri-lanka-womens-in-security-in-the-north/> Working Conditions of the Central Hill Tamils: The Ungrateful Tea Plantation Sector by the Sri Lanka Campaign for Peace and Justice, 04.01.2012, accessible at <http://blog.srilankacampaign.org/> Education of the Central Hill Tamils: The Deprivation of Choice by the Sri Lanka Campaign for Peace and Justice, 08.01.2012 accessible at <http://blog.srilankacampaign.org/> Demographic Engineering by the Government of Sri Lanka: Is this Eugenics? by the Sri Lanka Campaign for Peace and Justice, 09.12.2011, accessible at <http://blog.srilankacampaign.org/>

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