July 27, 2019 (LBO) – The people of Sri Lanka must act together to secure democracy, human rights and the rule of law, says the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, Clément Nyaletsossi Voule.
“At the root of the rights to freedom of peaceful assembly and of association is the ability of people to come together to make their voices heard. It is important that the people of Sri Lanka unite in order to bolster the democratic progress that the country has made so far,” the expert said, presenting a preliminary statement at the end of a visit to the country.
“While Sri Lanka is party to many of the international human rights instruments which have created clear human rights obligations for the State and while legislation has been put in place to largely reflect these obligations, divisions in society represent a threat to them being fully achieved.”
The expert was daunted by the widespread fear of setbacks in the democratic gains expressed by all sectors of society. “It is important that the country’s political leaders do not dismiss people’s desire for freedom, rule of law and democracy and do not undermine the progress that has been hard fought for, particularly in light of the upcoming elections.”
The Sri Lankan constitution protects the rights to both freedom of peaceful assembly and freedom of association. But the Special Rapporteur was made aware of a number of laws whose application jeopardised those rights, including sections of the penal code, the ICCPR Act, as well as the Prevention of Terrorism Act. The Vagrants Ordinance is also used, specifically in targeting LGBTI minorities.
“It has been brought to my attention that these laws are frequently applied in a discriminatory manner against those people organising around specific issues such as disappearances, land rights, livelihood and access to resources, and development projects,” Voule said.
“The Government must equally act to address the root causes of protests, dealing head on with the issues raised by participants in the course of their demonstrations.”
The Special Rapporteur’s visit comes at a critical time for the country, following the devastating terrorist attacks in April and a constitutional crisis late last year. In addition, the current application of emergency regulations has heightened tensions and has made it more difficult for some members of civil society to carry out their activities and assemble peacefully.
Recently, a series of legislative reforms were proposed including changes to the law regulating NGOs and the creation of counter-terrorism and unified employment bills. However, these revisions were met with stark opposition from civil society campaigners, who say that they risk clamping down on existing rights and were created without a sufficiently participatory consultative process.
“Following these objections, I am pleased to say that the relevant Minister withdrew the draft NGO bill, opting instead to permit civil society to create their own draft law for discussion,” Voule said.
Failure to enact comprehensive security sector reform since the devastating and protracted civil war, which ended in 2009, has also made it difficult for civil society to operate. Intelligence frameworks that carry out surveillance of protests and other activities are still in place, and threats and harassment of human rights defenders have also been reported.
“In certain areas of the country, this is reminiscent of past practices and continues to instil fear and deter people from exercising their rights to freedom of assembly and association,” Voule said.
The Special Rapporteur also expressed concern over the growing prevalence of hate speech in the country, which increased notably after the April attacks.
“While legislation is in place to combat hate speech, including under the ICCPR act of 2007, the legislation is not applied with an even hand, and discriminatory and violent rhetoric, particularly by members of the majority community frequently goes unpunished. This is exacerbated by the use of social media to fan the flames of hatred and spread misinformation. This is a serious threat to the existence of a respectful and peaceful dialogue among sectors of society, an essential element for any representative democracy,” Voule said.
During his visit, the UN expert travelled to the North, South and East of Sri Lanka, as well as the capital, Colombo. He met Government officials and representatives of civil society, trade unions and others. He thanks the government for the invitation and the cooperation before and during the visit.
The Special Rapporteur’s conclusions and recommendations will be presented to the UN Human Rights Council in June 2020.
End of Mission Statement (Full) – United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association, Clément Nyaletsossi Voulé, on his visit to Sri Lanka (18-26 July 2019)
Colombo, Sri Lanka, 26 July 2019
Today I end my official visit to Sri Lanka, which I carried out at the invitation of the Government from 18 July. I would like to start by thanking the Government of Sri Lanka for its full cooperation before and during the visit. I was honoured to meet with the Ministers of Foreign Affairs, of Labour and of National Integration, Official Languages, Social Progress and Hindu Religious Affairs, as well as the Attorney General. I was also able to exchange views with the Governors of the Northern and Southern Provinces, a number of Government departments including representatives from the Ministries of Defence, Finance, the Board of Investment, the Army, Air Force and Police. I am also thankful to the Speaker of Parliament, the Chief Justice, and members of public institutions like the Human Rights Commission of Sri Lanka, the Office on Missing Persons, the National Police Commission and the Election Commission for sharing their views with me.
I wish to express my gratitude the UN Resident Coordinator and the human rights advisors in her office, and to the UN Country Team for their support, and to other international organisations.
Most importantly, I wish to thank all members of the Sri Lankan civil society, non-governmental organisations (NGOs), associations, trade unions, protesters, and women workers, who bravely met with me and recounted their experiences on what it means defending human rights in the country today. Sri Lankan civil society, with its courage, persistence, vibrancy and professionalism, is an essential pillar to continue the strengthening of democratic institutions and its continued involvement must be nurtured moving forward.
I would also like to take this opportunity to highlight the constructive cooperation of the Government of Sri Lanka with the United Nations human rights mechanisms, in line with its international obligations, and with special procedures in particular, to whom the Government extended a standing invitation. I commend that many of my colleagues mandate holders (nine since 2014; and 2 more agreed for 2019) had the opportunity to conduct a visit at the invitation of the Government over recent years. My work builds on theirs.
In the past 4 years, Sri Lanka has made great strides with regards to democratisation of the country. A notable watershed moment in this process was the introduction of the 19th Amendment to the Constitution, which was passed in parliament by a two-thirds majority on 28 April 2015. The Amendment introduced a number of measures designed to strengthen the democratic character of the country, including the reduction of the executive powers of the President and the limitation of the Office’s term.
The Amendment also introduced provisions for the reintroduction of the Constitutional Council, and for the delegation of powers to the Constitutional Council with regards to the approval and designation of members to a number of independent commissions and institutions, including the Human Rights Commission, the Election Commission and the National Police Commission. The Council also has a role in the approval of selections by the President for the offices of Chief Justice, Attorney General, and Ombudsman, among others. Decisions, approvals and recommendations made by the Council are final, and can only be challenged in a Court of Law, through a Fundamental Rights application in terms of Article 126 of the Constitution. Furthermore, the Amendment introduced a right to access information, an invaluable contribution towards democratic transparency in the country. All of these measures have created a more enabling environment for the protection of human rights and the right to peaceful assembly and association
Everywhere I went, I heard repeated praise for the unrelenting work of the Human Rights Commission, which now holds an A-status according to the Paris Principles, in defence of all human rights for all.
With regards to transitional justice following the civil war, I commend the Government on its establishment of two key institutions, the Office on Missing Persons (2016) and the Office for Reparations (2018), in line with its international obligations under Human Rights Council resolution 30/1, which it co-sponsored. These two institutions are of the utmost importance in promoting reconciliation in the country and I urge the Government to provide its vital support to their endeavours and to continue on the path towards the full implementation of transitional justice mechanisms, in line with its aforementioned obligations.
I wish to stress the importance of consolidating the democratic gains that the country has achieved, especially through the bolstering of its above-mentioned institutions and commissions, enshrining in law safeguards to ensure their continued operation and the fortification of their independence.
I also take note of Sri Lanka’s promising and continued economic growth and impressive progress with regards to its socio-economic and human development indicators, which are among the highest in South Asia. Since the end of the civil war, poverty has drastically reduced, and the role of civil society organisations in the implementation of the Sustainable Development Goals 2030 was raised a number of times during my visit.
Freedom of Peaceful Assembly
Sri Lanka is a party to the International Covenant on Civil and Political Rights, which it acceded to on 11 June 1980, and which provides for the rights to freedom of peaceful assembly and of association under articles 21 and 22.
I found that the legal framework governing the right to freedom of peaceful assembly is comprehensive, although scattered in different sets of laws and regulations which seem to be interchangeably enforced. Some of these laws and regulations have, however, been used to unduly restrict this right. These restrictions seem more frequent in the North and East of the country. In addition, I heard numerous accounts that enforcement of this legislation can be biased according to who the organisers of the protest are, or who those who object are, for example.
The right to freedom of peaceful assembly is recognised as a fundamental right by article 14(1)(b) of the Sri Lankan Constitution. In line with international law, this right may be restricted under certain conditions, however, as per the Constitution, this right is subjected to additional restrictions pertaining to racial and religious harmony, restrictions which are not recognised at the international level. While the Constitution is the foundation for fundamental rights in Sri Lanka, it is concerning that there is no facility for constitutional review of already enacted legislation.
In addition to the Constitution, the exercise of the right to freedom of peaceful assembly is regulated by legislation and various other regulations, including the Prevention of Terrorism Act (PTA), the Penal Code, the Police Ordinance and Department Order No. 19.
Chapter VIII of the Penal Code regulates offences against public tranquillity and provides for a definition of an unlawful assembly, while Department Order No. 19 provides additional guidance in relation to the management of assemblies. Its stated objective is “to prevent disturbances as more desirable and a greater achievement than quelling disturbances by force”; it continues on to state that “a crowd of persons will seldom become disorderly or riotous unless it has been allowed to congregate and remain in one place for some time”.
This Department Order is supplemented further by IG Circular 2595/2016, which includes a number of directions in compliance with international human rights law, including graded levels of force where strictly necessary and the removal of violent elements from a crown when the assembly itself is peaceful, and which states that “it is of utmost importance that, police officers in the process of protecting law and order do not intentionally or otherwise infringe upon the Fundamental Rights of people”.
While noting the considerable efforts undertaken in transforming the police force into a well-trained and community policing force since the end of the war, the approach of the police in managing assemblies seems to rest on the negative perception that protests and demonstrations are generally a nuisance and should be prevented, instead of being treated as a fundamental right inherent to every person.
Article 77 of the Police Ordinance establishes that protests are subject to a notification procedure, requiring organisers to notify the local police of their intention to hold protests six hours in advance. In the absence of notification, organisers may be found guilty of an offence. The same article allows police officers of a certain rank, in the interests of public order, to give directions prohibiting a demonstration or “imposing on the person or persons organising or taking part in the [demonstration] such conditions as appear to him to be necessary”. These conditions may include interdictions on the carrying of flags, banners or emblems. Police officers can also direct the conduct of peaceful assemblies in any public place, determine the routes and timeframes of assemblies and order groups of 12 or more people to disperse “when they have reason to apprehend any breach of the peace”. These provisions give cause for concern, as they are in conflict with international human rights standards regulating the exercise of the right to freedom of peaceful assembly. I have also received reports that the Vagrants Ordinance of 1841 could have a chilling effect on gatherings of certain communities, including the LGBTI community.
Following the Easter Sunday attacks, the President declared a State of Emergency, which has been extended three times. The proclamation of the State of Emergency brings into operation the Public Security Ordinance, which gives the President the power to make emergency regulations, which can override any law, other than the constitution. These regulations appear to have further limited the right to peaceful assembly. For example, unauthorised persons may be prevented from entering restricted areas, places or premises if a competent authority is of the opinion that such special precautions should be taken. The holding of public demonstrations or meetings can also be prohibited by the President where he is of the opinion that such is likely to cause a disturbance of public order or may promote dissatisfaction. He also has the power to impose curfews.
During my meetings, I heard disturbing accounts of peaceful assemblies of groups mobilising around common concerns which were prevented from taking place, or which were met with physical and verbal violence at the hands of individuals, without public intervention. For example, individuals were prevented from taking part in a special prayer event at Vinayagar Temple, located in the premises of Kanniya hot water springs in Trincomalee, when their bus was repeatedly stopped for excessive periods of time at checkpoints. When they reached the fourth and final checkpoint on their journey, they were stopped and forbidden from travelling any further. Meanwhile, police obtained an injunction order from the court for public nuisance, which prevented individuals from accessing the site.
In another instance, representatives of 100 families which I met with in Keppapilavu stated that a court order had removed them from their protest site beside an army barracks (where they had been peacefully gathering for 792 days). They were forced to relocate to another location, while the court order instructed them to assemble only in groups of a limited size and to refrain from chanting slogans, citing army security concerns. The families had been gathering to demand the return of their land, which the army had occupied. While the families did not complain of any physical intimidation, they are psychologically affected by efforts to demoralise them and discourage them in their struggle.
While I note efforts by the Government to ensure the army releases the land they had previously used for military purposes, it is of utmost importance that land restitution happens promptly, and that peaceful protests of those still waiting be allowed to take place with no restrictions. Oftentimes, this land has constituted the only source of livelihood for affected families, and its loss places these women and men in a vulnerable position, frequently having to work as daily labourers, while keeping up their protest so that their demands are not neglected or forgotten.
As noted above, I heard on several occasions that the police resort to court injunctions to stop or prevent protests from taking place because of public nuisance and disturbance; it seems that the police can seek a court injunction on its own initiative or after receiving a complaint. However, it appears that public nuisance and disturbance are not equivalent to unlawful assemblies as per the criteria outlined in the penal code. In addition, these court orders are often issued without hearing both sides in relation to the protest. While court orders are a legitimate judicial act, I am concerned that they may be used too routinely in this way and in a biased manner, without thorough review of all elements that may make the protest violent and therefore unlawful.
I also heard reports of protests met with force, water cannons and tear gas, in ways that seemed disproportionate. I understand that steps have been taken in relation to certain emblematic cases involving death at the hands of law enforcement officials to bring cases to trial, albeit many years after the event. I hope that accountability for the perpetrators and redress for the victims and their families will soon become reality.
During my mission, I heard stories that mothers of disappeared persons and activists supporting families of the disappeared have been intimidated against organising and participating in memorial ceremonies and memorial days for those who disappeared. For example, I learnt that on 18 May 2019, families of the disappeared from Ampara were at a remembrance ceremony at Thirukkovil Manikka Pillayar Temple, when army soldiers arrived and destroyed and removed banners and decorations, threatening to arrest and detain the participants.
Further to these obstacles, the Government also seems to have resorted to declaring certain sectors as essential public services in order to restrict those sectors’ right to strike and peacefully assemble. For example, in June 2019, an Order was gazetted declaring that public transport services were an essential public service under the Essential Public Services Act No. 61 of 1979. This was after the Railway Engine Drivers Association announced a strike relating to a number of employment related demands. Similarly, in 2017, an order declared garbage disposal an essential service under the Public Security Ordinance (PSO). In the case of the garbage disposal, it appears that after Colombo’s garbage was redirected to sites on the outskirts of the capital, protests were held by concerned local communities and their representatives. Some of these actions reportedly included the blocking of roads to prevent trucks from dumping garbage. Yet, in these cases, protests are stifled through an executive legal decision, instead of engaging with the concerned communities over their issues and reasons for their discontent.
Freedom of Association
Sri Lanka has a large and varied civil society, with some 1,500 NGOs registered at the national level, working on diverse topics including post-conflict rehabilitation and reconciliation, disappearances, women’s rights, LGBTI inclusion, land rights, environment, natural resources, freedom of expression, minority rights, corruption, development and education. More NGOs exist still at a local level, encompassing a similar variety. I also noticed a most promising trend at a local level, with organisations increasingly gathering themselves into community consortia, pooling knowledge and mutual support in order to create a strong and vibrant civil society culture.
The right to freedom of association is guaranteed under article 14(c) of the Constitution, subject to certain restrictions contained in articles 15(4) and 15(7). Similarly to the right to freedom of peaceful assembly, restrictions on the right to freedom of association go beyond those permitted by international human rights law to include racial and religious harmony and national economy.
There are a number of ways to legally associate under Sri Lankan law, including as an NGO under the Voluntary Social Service Organisations Act of 1980, and as a society or a not-for-profit company under the Companies Act of 2007. Registration of associations is not strictly required under Sri Lankan legislation, however, during consultations with civil society, concerns were raised regarding difficulties in opening bank accounts or obtaining visas for expatriate staff for unregistered associations.
Registration for NGOs caries certain benefits, such as reduced tax obligations in certain cases and increased support in obtaining visas for expatriate employees. However, reporting obligations are unreasonably burdensome, and a large amount of information, including personal information, is required at the outset when initiating the registration procedure. Similarly, there is a lack of availability of clear guidance as to the procedure for registering NGOs, both at a national and district level, creating a barrier to entry for smaller NGOs without sufficient capacity to direct resources towards the process. I am happy to note, however, the recent addition of an online registration procedure for NGOs which simplifies the process into a number of steps which can be followed in an online registration form.
It is encouraging to note the recent transfer in competency for the NGO Secretariat from the Ministry of Defence to the Ministry of National Integration, Official Languages, Social Progress and Hindu Religious Affairs. The nomenclature of the ministerial oversight in itself demonstrates the evolution of the narrative regarding civil society, from an association with threats to national security to an understanding of the role of civil society in strengthening democratic processes, inclusion and the rule of law.
However, in order to register an NGO at the national level, approval is conditional upon prior receipt of security clearance from the Ministry of Defence, demonstrating that the security narrative regarding NGOs has not yet been set aside. Furthermore, in cases where security clearance is not provided by the Ministry of Defence, registration is refused. In instances where security clearance is withheld, reasons for refusal are allegedly not provided and there is no avenue for appeal of the decision.
At the district and divisional levels, the registration powers of the NGO Secretariat are devolved to district or divisional secretaries, who have a similar degree of discretion in the registration or refusal of registration of associations. Concerns were raised during consultations that informal refusals of registration for associations are commonplace in the North and East for groups working on politically sensitive issues such as LGBTI rights, disappearances, land rights and post-conflict reconciliation. Usually these refusals come in verbal form, without documentation or form of redress. In these cases, reports have been received of local officials refusing to accept registration forms, or even refusing to provide registration materials in the first place.
Furthermore, at a district and divisional level, associations are required to obtain approval from the relevant district or divisional secretary for programs they wish to implement. Rejections of certain programs have been reported, allegedly due to the political or sensitive nature of an association’s purview.
In 2018, a new draft piece of legislation regarding the operation and registration of NGOs was introduced, however, due to widespread criticism from civil society, the bill was shelved. In a promising turn of affairs, the Ministry of National Integration, Official Languages, Social Progress and Hindu Religious Affairs put the drafting of a replacement bill in the hands of civil society, demonstrating a collaborative and consultative disposition towards civil society on the part of the Government.
With regards to funding, limited options are available at the national level due to scarce allotment of capital to the NGO Secretariat. For larger transfers of funding to associations, including foreign transfers, they are often required to provide justification to the Central Bank. This has been exacerbated under the currently applicable Emergency Regulations.
Furthermore, NGOs are taxed on their income. While the tax hovers at approximately 1%, with certain dispensations for humanitarian objectives, this still constitutes an unnecessary impediment for NGOs, especially considering the relatively meagre income it provides to the Government, which could instead be diverted towards beneficiaries.
Freedom of Association of Trade Unions
Sri Lanka has a long history of strong trade unions, however, following the opening of the country to economic liberalisation in the late 70s, the strength of trade unions has diminished and workers, especially those involved in informal employment, have found it increasingly difficult to exercise their labour rights.
While Sri Lanka has ratified ILO conventions 87 and 98 pertaining to freedom of association, the right to organise and collective bargaining, the implementation of these conventions remains underwhelming, with reports of union busting and restrictions on collective bargaining frequently being brought to my attention.
The difference between trade unions in the public and private sector is pronounced, with a strict separation between the two. Public sector trade unions are forbidden to federalise with other trade unions, whether public or private, under article 21 of the Trade Union Ordinance of 1935. Public sector trade unions also experience significant fragmentation within their own areas of work, with over 50 trade unions in some public sectors such as railways, leading to difficulties in obtaining representative status, which requires 40% of workers within a given field to be members of the trade union. This affects their collective bargaining power and has led to infighting and one-upmanship between them.
The National Labour Advisory Council (NLAC), is not a legal entity and is rather a consultative body, comprised of government, employers and representatives of the “most representative” trade unions in Sri Lanka. Some public sector trade unions are also included in the Council, however they are not seen to represent the public sector workers in this capacity. The ability to take decisions based on matters raised in the NLAC rests solely with the Government. Furthermore, the NLAC is seen as unrepresentative by many smaller trade unions, as the metrics on representivity used by the Government in appointing unions to the Council are unreliable, given the lack of a verification process on the part of the Government in determining the membership of trade unions. The union representatives are also all men, leading female workers, who make up a significant portion of trade union membership in Sri Lanka, to feel dejected. I am happy to note that certain unions have recently began to introduce gender quotas for leadership roles within their associations.
I am concerned by reports that I have received which state that the Department of Labour is seen to be pro-employer in the resolution of disputes in the private sector. This is due, in part, to a proclivity of the Department to be seen as pro-investment, and its desire to reduce obstacles to foreign capital and enterprise from entering the country. Concerns have also been raised regarding the failure of the Department to intervene in disputes in a timely fashion or to implement compromises which it has helped to broker.
Obstacles to freedom of association have been particularly reported in Free Trade Zones (FTZs), where interventions of the Department of Labour have been limited in practice. Workers in FTZs are especially vulnerable as most have migrated long distances from their hometowns in search of employment, and live in lodgings provided by the employers themselves. While the right to unionise in these areas is recognised on paper, in practice it is extremely difficult. Union busting, reprisals for membership and intimidation within FTZs have all been brought to my attention, along with substandard working conditions. While the Department of Labour has free access to the zones, I have received reports of that the Board of Investment, the body competent for activity within the zones, has allegedly become the de facto arbiter of labour disputes in the FTZs. Advance warning is allegedly given to the Board of Investment by the Department before visits, and labour standards are said to drastically and temporarily increase in periods leading up to, and during, inspections.
The Government is currently in the process of attempting to codify existing labour laws (which number over 40) into a single unified employment law. The law has been met with stark opposition by trade unions due to its purported reduction of labour standards which were hard fought for by unions. While the bill is said not to reduce any of the rights currently available to workers, it does not seek to improve conditions in any way, and in fact reduces limits on minimum terms and conditions for workers, such as maximum daily working hours. The bill would affect some 2.5 million workers and, when introduce, had been rejected by all trade union members of the NLAC. The bill was allegedly drafted without the knowledge or consultation of trade unions, preventing them from representing the interests of their members in its creation.
Another obstacle to the effective implementation of workers’ rights is the heavy politicisation of trade unions. While independent unions do exist, they are the exception rather than the rule, with some unions preferring to represent the interests of their respective affiliate political parties rather than the interests of their members. A result of this is that the concerns of smaller independent trade unions are often not heard, as larger politicised unions within the same sector often do not speak up due to political sensitivities.
Other threats to the rights to freedom of peaceful assembly and of association
Although the protracted and devastating war ended a decade ago, deep-seated ethnic and religious divides persist in the country. In addition, the failure of Sri Lanka to implement comprehensive security sector reform since the end of the conflict has meant that the mind-set of security forces has remained extremely apprehensive. The recent and tragic terrorist attacks on Easter Sunday of this year reopened old wounds and exacerbated barriers to freedom of peaceful assembly and association on national security grounds.
I am very concerned at the numerous accounts I received of surveillance, including online surveillance, used to monitor the activities of the civil society sector and intimidate those protesting peacefully for their demands to be heard. Whether people demand the return of their lands, information on their disappeared family members, better living and working conditions, all seem to undergo some low but regular level of surveillance which includes questioning, intimidating phone calls and taking of photos and videos. This type of surveillance can inhibit the workings of civil society organisations and dissuade people from joining in demonstrations. Indeed, reports that I have heard while I have been in the country have indicated such. Members of civil society have also expressed their concerns to me as to how this information may be used, both now and in the future.
Surveillance seems to be particularly prevalent in the North and East of the country and seems to have increased following the Easter Sunday attacks, even though the areas affected have little to no connection with the attacks or the perpetrators. This, coupled with the continuous and strong military presence, which has a highly symbolic value for the lack of accountability for the human rights violations committed during the war, contribute to perpetuate the frustrations, resentment and disenfranchisement, felt by the communities in those areas which remain mistrustful of any State institution. While this surveillance may not be a State-led policy, the State has the responsibility to take the necessary steps so that civil society can freely carry out their legitimate work without surveillance or intimidation.
Indeed, before, during and after my consultations with civil society, participants reported receiving intimidating phone calls, demanding information on other participants, topics discussed and route plans. I was personally witness to this surveillance. During my consultation in Trincomalee, presumed intelligence personnel in civilian clothing were observed monitoring participants outside of the meeting place. In another location, military personnel took note of our vehicles’ number plates. I must, at this point, categorically condemn these instances of surveillance, which may be considered as acts of reprisal and I remind the Government that it has an obligation to ensure that no acts of reprisal occur against those under its jurisdiction who wish to interact with UN human rights mechanisms.
Furthermore, the Prevention of Terrorism Act is used to unevenly target ethnic and religious minorities in the North and East, often being instrumentalised to break up memorial gatherings and harass civil society organisations working on issues such as accountability, disappearances and return of lands seized by the military during the conflict. In a similar vein, the Emergency Regulations put in place following the Easter bombings have put more power in the hands of security forces, who disproportionally target these communities without justification.
I am also alarmed by the high levels of hate speech, both on and offline that seem to have spiked after the Easter Sunday attacks in the country. Despite the fact that sufficient legislation is in place to effectively combat and prosecute hate speech through, inter alia, the ICCPR Act 2007, the usage of section 3 of the act – which criminalises speech which advocates for national, racial or religious hatred leading to or inciting discrimination, hostility or violence – has been used to target minority communities, while highly publicised instances of hate speech within the majority community have remained largely unpunished.
Hate speech and misinformation have been able to propagate at alarming speeds due to the use of social media which has remained largely unchecked. While the Government has instituted social media shutdowns at certain points in order to combat this, I note that such shutdowns also have an adverse effect on the ability of people to freely assemble and associate online. With this in mind, I underscore that there must be sufficient safeguards and monitoring mechanisms in place to effectively combat hate speech and misinformation online, with internet or social media shutdowns only being used as a measure of last resort.
Key Recommendations and Conclusions
Sri Lanka has made significant strides over the last 4 years with regards to the democratisation of the country and the enjoyment of human rights of those under its jurisdiction, after a dark period in its human rights record.
This progression has been marked by a significant opening of civic space, the reform of state institutions and earnest steps towards transitional justice and reconciliation.
It is, however, necessary for the Government to ensure that the gains that it has made with regards to democracy and reconciliation are not undermined by the discriminatory application of legislation, the continued state of emergency, extremism or the propagation of hate speech among the public, both online and offline.
I am indeed daunted by the widespread fear of setbacks to these democratic gains, which has been expressed to me by all sectors of society. It is important that the country’s political leaders do not dismiss the people’s desire for peace, freedom, rule of law and democracy and do not undermine the progress that has been hard fought for, particularly in the run up to upcoming elections.
While the legislative model that Sri Lanka maintains for the exercise of the rights to freedom of peaceful assembly and association is largely favourable for the enjoyment of these rights, consistent reports that we have received aver to the fact that, in practice, such legislation is not applied, is unequally applied, or is instrumentalised towards a use other than its intended use, in a discriminatory fashion.
It is imperative that the Government make use of the comprehensive legislation that it has, and the independent institutions which are designed to facilitate the exercise of human rights, including the courts, in order to ensure that all human rights are enjoyed by all those under its jurisdiction.
It is furthermore important that the Government act to address the root causes of protests, dealing head on with the issues raised by participants in the course of their demonstrations.
I recommend equally that the Government take steps to identify gaps in legislation which may allow for its discriminatory use, and make concerted efforts to close these gaps.
In a similar vein, following the testimonies that I have received while travelling throughout the country, I am of the opinion that security sector reform would go a long way in combatting unnecessary surveillance of civil society and building trust among communities.
With regards to legislation, the Prevention of Terrorism Act remains, at the very least, problematic for the enjoyment of the rights to freedom of peaceful assembly and association.
However, equal concern has been expressed by civil society over the contents of its potential successor, the Counter-Terrorism Act. While it is clear that there are legitimate security concerns to take into consideration, any law enacted with regards to counter-terrorism should be drafted in continuous consultation with civil society, who can play an important role in ensuring that any eventual law enacted is human rights compliant and addresses the concerns of all sectors of society, including those of the security community.
On the topic of draft law, I recommend that, should the Government decide to press forward with the enactment of a new law regulating NGOs, it should do so by using the draft law which is being elaborated by civil society stakeholders as the starting point for discussions. Similarly, on the unified employment law, the Government should address the legitimate concerns of trade unions regarding its content, and endeavour to include unions at every step during the elaboration process. In all cases, any draft legislation should be checked for its compliance with Sri Lanka’s international obligations
All in all, I urge the Government to take the issues raised in my preliminary observations into consideration, and I underline that, in this regard, my mandate remains available to the Government for any advice regarding the implementation of the rights to freedom of peaceful assembly and of association, technical or otherwise. Furthermore, at the Government’s invitation, I would be happy to conduct a follow up country visit should the opportunity arise.
I am grateful to have had the opportunity to visit Sri Lanka during this critical period, and look forward to continuing our dialogue and discussing my full report when I present it in June 2020 at the 44th session of the UN Human Rights Council.
I thank you for your attention.