UN TREATY BODIES ON SRI LANKA RECENTLY ISSUED CONCLUDING OBSERVATIONS AND RECOMMENDATIONS

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UN TREATY BODIES ON SRI LANKA

RECENTLY ISSUED CONCLUDING OBSERVATIONS AND RECOMMENDATIONS

Parallel Event on the Occasion of the 16th

Regular Session of the UN Human Rights Council

“Human Rights Situation in Sri Lanka: Contextualizing the Post-Conflict Realities”

9 March 2011

Theodor Rathgeber

Sri Lanka Advocacy Network, Germany

www.lanka-advocacy.org

The human rights situation in Sri Lanka continues to deteriorate. There is political interference in law

enforcement and judicial institutions, intimidation and impunity prevail, and the rule of law is obstructed. The

18th Amendment (8 September 2010) to the Constitution took away important safeguards against the

concentration of power in the Executive Presidency. Threats and attacks against human rights defenderscontinue after the end of war in 2009. The Emergency Regulations and the Prevention of Terrorism Act

remain, and are still used to arrest and detain people who express opposition and unconformity.

In relation to the international level, the current government of Sri Lanka continues to oppose the Panel of

Experts appointed by the UN Secretary-General in order to examine alleged violations of international human

rights and humanitarian law during the final stages of the armed conflict.1

More specifically, in the last months,three Committees of the UN Treaty Bodies issued their Concluding Observations and Recommendations,

which will be summarised in the following paragraphs: the Committee on the Rights of the Child (September

2010), the Committee on Economic, Social and Cultural Rights (November 2010) and the Committee on the

Elimination of All Forms of Discrimination against Women (January 2011).

All three documents reveal three overarching observations concluded by the Committees themselves: a) the

Sri Lanka Government left a number of questions by each of the Committees unanswered; b) each national

report was not prepared in a participatory process involving national civil society organisations; c) the ongoingstate of emergency is definitively hampering the implementation of the treaties and its obligations. The

documents also reveal that there is sufficient evidence to conclude that the government of Sri Lanka fails to

properly address the concerns and also fails to implement the corresponding recommendations by the threeUN Treaty Bodies. There is neither a serious attempt to ensure prompt, impartial and exhaustive

investigations into allegations of human rights violations, neither to impose appropriate sentences on

perpetrators.

In addition, the documents of the UN Treaty Bodies provide facts, observations and substantiated opinions

that can lead to the conclusion that Sri Lanka is still experiencing a deep crisis in terms of legality,legitimatisation and even in conducting a reliable methodology e.g. in fact finding. This may explain too, why

there are that many doubts about domestic procedures promoted by the Sri Lanka government for fact finding

and conflict resolution, and why there is this continuing appeal to recur on international standards.

A next striking conclusion refers to the number of references dealing with discrimination, so that again the

impression prevails to be confronted not only with a state in institutional crisis but with an intentionally

exercised policy of segregation: towards minorities, religious and ethnic communities, people with disabilities,women in various sectors of society, North-South, in combination with a growing disregard towards workers in

lower income levels and the right to free assembly. In terms of human rights, there are even discriminatory

provisions by law hindering people in having access to a number of minimum rights.

1See also written statements by NGOs to the 16

thregular session of the UN Human Rights Council (28

February - 25 March 2011): A/HRC/16/NGO/37, A/HRC/16/NGO/38, and A/HRC/16/NGO/39 submitted by PaxRomana; A/HRC/16/NGO/64 submitted by Asian Legal Resource Centre; and A/HRC/16/NGO/111 submitted

by International Movement Against All Forms of Discrimination and Racism (IMADR).

http://www.lanka-advocacy.org/





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UN Committee on the Elimination of All Forms of Discrimination against Women

The Committee on the Elimination of All Forum of Discrimination against Women considered the combined

fifth, sixth and seventh periodic reports of Sri Lanka. In its concluding observations2, the Committee stated in

the beginning (paras 3-4) that the government’s delegation left several questions unanswered, which had beenraised by the Committee during the dialogue. The Committee also noted that the report was not prepared in a

participatory process involving national civil society organisations and, in particular, no women’sorganisations.

While it welcomed a number of procedural steps taken by the government of Sri Lanka, such as the enactment

of the Prevention of Domestic Violence Act (2005) and the Penal Code (Amendment) Act No. 16 of 2006, andrecognised the challenges arising from the armed conflict, the Tsunami of 2004 and the recent floods, the

Committee addressed a number of concerns.

Although Sri Lanka ratified the Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW) in 1981, it has not yet been accorded the status of domestic law under the Constitution or an Act of

Parliament (para 12). Furthermore, the national legislation does not prohibit discrimination against women

according to article 1 of the Convention, and the Women’s Rights Bill which is being elaborated by Sri Lanka is

not in line with the Convention (para 14).

With regards to specific subjects, the Committee raised critical questions related to (paras 10-45):

1. Persistence of discriminatory provisions in the law, including the Land DevelopmentOrdinance which still gives preference to male heirs over females, the general personal laws,

the Muslim Personal Law, the Kandyan Law and the Tesawalamai Law;

2. The Prevention of Domestic Violence Act as it seems that family relations prevail over

protection of women and suppression of violence against women;

3. Preservation of customary and religious marital laws that contain discriminatory elements

against women;

4. Combination of general, customary and religious marital laws that contain discriminatoryelements against women, and that polygamy is not prohibited;

5. Lack of a minimum age of marriage under Muslim Personal Law;

6. Tamil women who still need their husband’s consent to appear in court or undertake anytransaction;

7. Persistence of stereotypes regarding gender roles;

8. Extremely low level of participation of women in politics and public life;

9. Gender role stereotyping in formal education;

10. Discriminatory practices which prevent women from acquiring ownership of land since onlythe head of household is authorised to sign official documentation such as land ownership

certificates and receive pieces of land from government;

11. Discrimination against women in the labour market, in particular the concentration of women in low-skilled and low-paid jobs and the high rate of unemployment affecting women;

12. Protection of women working in the informal sector and the lack of specific law on sexual

harassment;

13. Reports of gross violations of the human rights of women on both sides, particularly the

Tamil minority group, the internally displaced women and the female ex-combatants;

14. Reports of sexual violence allegedly perpetrated by the armed forces, the police and militant

groups, private actors;

15. Adequate infrastructure for female internal displaced people and returnees especially with

view on housing and health facilities, water and sanitation;

16. Internally displaced women and there possibility to freely move;

2CEDAW/C/LKA/CO/7, 48th session, Geneva, 17 January-4 February 2011



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17. Reports on the inadequate infrastructure and the limited availability of basic services such as

shelter, health facilities, water and sanitation;

18. Maternal healthcare, the knowledge of reproductive health and the rate of use of

contraceptives, the level of teenage pregnancies in conflict-affected areas, the accessibility tofamily planning and the rate of HIV/AIDS infection among women;

19.

Counselling centres for women to address the traumatic experiences, specifically with regardto sexual violence;

20. The National Action Plan and the delays in the adoption of the bill establishing the National

Commission on Women.

The Committee finally urged Sri Lanka (paras 50-56) to widely disseminate the Concluding Observations in

order to make the people, government officials, politicians, parliamentarians and human rights organisationsaware of the outcome, and to consult women’s and human rights organisations in the preparation of the next

periodic report.

UN Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights considered the combined second to fourth periodicreport of Sri Lanka on the implementation of the Covenant3

In its Concluding Observations, the Committeementioned that the periodic report was submitted with a 15-year delay, contained limited information,

disaggregated data and only few relevant statistics on the implementation of the International Covenant on

Economic, Social and Cultural Rights (ICESCR). Half of the questions by the Committee were not responded

(para 2).

Sri Lanka’s reasonably good human development indicators and rising per capita levels of national income

should not prevent the view on the existence of deprivation, violence in society and within the family, rising

poverty, prevalence of anaemia, low labour force participation rate of women, exploitation of women’s waged

and unwaged labour, abysmal representation of women in political office, and inequalities based upon gender,

age, ethnicity and region among other factors. Expenditure on defence increases year-on-year and is greater

than spending on health and education combined. While some progress has been made in the refinement of statistical measures, most socio-economic indicators are only disaggregated on the basis of administrative

unit.

The Committee welcomed a number of procedural steps and recognised the challenges. However, the

Committee addressed a number of concerns in general, relating to the uncompleted implementation of the

Covenant into domestic law, and that the legally binding character has been questioned several times by theSri Lanka Supreme Court. The Committee expressed its concern that the state of emergency continues

hampering the full realisation of the economic, social and cultural rights.


1. Judiciary and other oversight bodies which lack independence to effectively carry out their

role in the promotion and protection of economic, social and cultural rights as well as to the18

thAmendment of the Constitution passed on 8 September 2010 which further reduces the

independence of the judiciary and other oversight bodies; as e.g. it provides for direct

appointments by the president of, inter alia, chairpersons and members of the Commission

to Investigate Allegations of Bribery or Corruption, members of the Judicial Service

Commission and the Parliamentary Commissioner for Administration (Ombudsman);

2. Widespread threats, attacks, defamation campaigns and various forms of stigmatization

against human rights defenders and illegitimate restrictions of their activities;

3. (None-) dialogue with civil society actors;

4. Speed up the process of adoption of a Right to Information Act;

3E/C.12/LKA/CO/2-4/CRP.1, 45th session, Geneva, 1-19 November 2010



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5. High levels of corruption. The Committee encourages Sri Lanka to seek the cooperation of

international organisations with special expertise in the field of combating corruption;

6. Conversion of the Veddahs’s traditional land into a national park, which has contributed to

their socio-economic marginalisation and impoverishment, as being prohibited the access totheir traditional hunting grounds and honey sites. Veddahs are also stigmatised, Veddah

children are victims of ostracism in the school system and often employed in hazardous

occupations;

7. Harsh working and living conditions of plantation workers and their families, a highproportion of them living in extreme poverty;

8. Implementation of the National Plan of Action for the Social Development of the Plantation

Community adopted in 2006;

9. Citizenship Act No.18 of 1948 which deprived Tamils of Indian origin of citizenship which has

still not been abrogated. Thousands of Tamils of Indian origin are still awaiting to be granted

citizenship on the basis of the 2003 Grant of Citizenship to Persons of Indian Origin Act;

10. Workers in sectors not covered by wage boards and who are not entitled to any minimum

wage. The Committee was concerned that tea plantation workers are denied a monthlysalary and receive extremely low daily wages;

11. Employment of persons with disabilities. Despite quota, they remain discriminated against in

their access to employment and highly stigmatised in the society. The Committee was

concerned that the 2003 National Policy on Disability has not yet been implemented and thatfamilies of disabled persons have so far only received limited support. The Committee also

expressed concern that a large proportion of children with disabilities, most of them girls,

remains deprived of any type of education opportunities;

12. General Comment No. 16 on the equal right of men and women;

13. Female unemployment rate which has remained twice as high as that of males for the past

decades and that almost half of the 15-29 age group, especially educated youths, remain

unemployed;

14. Low and declining representation of women in decision-making and public positions and their

concentration in only a few sectors of the economy and in low-skilled and low-paid jobs. TheCommittee was also concerned that the prohibition of direct and indirect discrimination in

employment and occupation and the principle of equal remuneration for men and women for

work of equal value have still not been reflected in national legislation.

15. Sexual harassment which is particularly widespread in tea plantations and in export

processing zones;

16. Migration which finds about one million of women workers abroad as domestic workers,often in slavery-like conditions;

17. Lack of child labour laws as previously recommended by the Committee (E/C.12/1/Add.24

para. 26). Almost one million children continue to be exploited economically in agriculture or

as domestics, the latter being often subjected to various forms of violence;

18. Malnutrition which affects nearly one-third of children and one quarter of women and that

the nutrition status of internally displaced persons, especially children, remains an issue of

serious concern;

19. Maternal mortality which is reported as the direct result of clandestine abortions, the lack of basic sexual and reproductive health services, the limited information available on safe

contraceptive methods, and the insufficient and educational programmes about sexual and

reproductive health, especially in the curricula of the Sri Lankan education system;

20. Mental health services which remain insufficient to cope with widespread post-conflictmental disorders. The Committee was also concerned that the 2007 draft Mental Health Act

was still not been adopted;

21. Acute overcrowding and the inhuman detention conditions which prevail in many of the

state’s prisons. The Committee was also concerned that children are not regularly separated

from adults;



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22. General comment No.12 of 1999 on the right to adequate food (E/C.12/1999/5). The

Committee drew the attention to the fact that the prevention of access to humanitarian food

aid in internal conflicts constitutes a violation of article 11 of the Covenant as well as a grave

violation of international humanitarian law. Thus, the Committee encouraged Sri Lanka to

fully cooperate with the UN Secretary-General’s panel on accountability;

23. Thousands of internally displaced persons who are still prevented from returning due to the

establishment of High Security Zones (HSZs) on their homelands. The Committee was also

concerned about the conditions of resettlement of internally displaced persons who often

lack basic shelter, access to sanitation and water and livelihood opportunities, a situation

aggravated by the regular restrictions placed on UN agencies, international organisations andinternational and national NGOs to access to internally displaced persons requiring urgent

assistance;

24. Restrictions on trade unions activities, the widespread harassment of trade unionists and the

low protection against anti-union discrimination, especially in Export Processing Zones(EPZs). In particular, the Committee was concerned that the Public Security Ordinance of

1947 and the Essential Public Services Act of 1979 impose restrictions on the right to strike

enforceable with sanctions involving compulsory;

25.

Trade unions are strongly discouraged in EPZs through suspension, demotion, dismissal of unionists, warning of new workers not to join unions, prohibition of trade unionists to enterthe EPZs and creation of employees’ councils funded by and functioning under the aegis of

the employer;

26. Legal recognition which is only granted to unions representing over 40% of workers at any

given workplace and that the Emergency Regulation No. 01 of 2006 amendment gives such abroad definition of essential services, that restrictions of trade union rights may be imposed

on almost any sector of the economy;

27. Persistence of significant disparities in levels of economic development between the Western

region and the rest of the country that affect the equal enjoyment by all of economic, socialand cultural rights such as employment, welfare benefits, health and social services;

28. Acute housing shortage and the large number of homeless persons. The Committee was also

concerned that slum dwellers are vulnerable to forced evictions;29. Public investment in education which is at a relatively low level in spite of the needs of

rebuilding school infrastructure in conflict-affected areas, reducing persistent disparities in

accessing education between the State party’s provinces and providing schools with water,

sanitation and electricity. The Committee was also concerned about the high school drop out

(one in five children) before completion of the compulsory nine-year cycle due mainly to the

existence of school fees despite the constitutional guarantee of free education and the lowquality of education. The Committee also regretted that insufficient efforts have been made

to include human rights and peace education in the school curricula.

The Committee finally urged Sri Lanka (paras 37-40) to widely disseminate the Concluding Observations, andto consult women’s and human rights organisations in the preparation of the next periodic report

UN Committee on the Rights of the Child

In its Concluding Observations,4

the Committee on the Rights of the Child, welcomed that the State party has

made a declaration upon ratification of the Protocol stating 18 years as the minimum age for voluntaryrecruitment to the armed forces, and that the penal code was amended (Amendment Act No. 16 of 1 January

2006) to penalize the engagement or recruitment of children for use in armed conflicts (para 4).


1. The National Human Rights Commission which lacks independence and has not beenprovided with the necessary human, financial and technical resources to carry out its

4CRC/C/OPAC/LKA/CO/1, 55th session, 13 September-1 October 2010



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responsibilities effectively. The Committee further regretted that its recommendation to the

State party to consider the establishment of a bureau for children’s rights within the

Commission to enhance access for children has not been followed up;

2. Relevant professional categories, in particular the military, the police and other securitypersonnel and those working for the administration of justice, which do not receive adequate

training on the provisions of the Optional Protocol as reflected by the lack of information

provided by the State party in this regard;

3. The Emergency Regulation No. 1580/5 of 2008 relating to Child Friendly Rehabilitation andReintegration Procedures of the Child Surrendees /Arrested which introduces judicial

intervention in the rehabilitation and reintegration process, but which may not comply with

the international juvenile justice standards;

4. Insufficient efforts in order to investigate the death of hundreds of children during the fivelast months of the conflict in 2009 as a result notably of alleged shelling and aerial

bombardments of civilians, hospitals, schools and humanitarian operations and deliberate

deprivation of food, medical care and humanitarian assistance;

5. Data on children in armed conflict which are almost exclusively collected through the UN

Children’s Fund database established in 2003. The Committee expressed concern that in spite

of some progress made in terms of family tracing, the whereabouts of hundreds of childrenwho are missing have not been clarified and that many children remained unidentified due

mainly to the lack of coordinated tracing structure and the obstacles met by humanitarian

agencies, including those with specific expertise in family tracing and reunification to access

to camps, transit, return and resettlement areas. The Committee was further concerned

about the absence of accurate data on children who have died as a result of the conflict andthe difficulties of families to obtain death certificates;

6. Lack of child protection and child welfare services in the war-affected areas. Only a limited

number of qualified officers having been deployed, equipped and funded to deal with

thousands of highly vulnerable children;

7. Orders issued in June 2010 from the Ministry of Defence to all commanders of the Security

Forces to curtail humanitarian access for virtually all UN agencies, international organisations

and international and national NGOs at a time when internally displaced families, especiallyfamilies remaining in camps, are facing food shortage and require urgent assistance;

8. Promptly establish family and community-based rehabilitation programmes as foreseen in

Emergency Regulation 1580/5 and to use centre based rehabilitation only as a last resort. The

Committee urged to ensure that rehabilitation centres are managed and operated in

compliance with the Paris Principles and Guidelines on Children Associated with Armed

Forces or Armed Groups, and in particular that army personnel are no longer involved in therunning of the centres;

9. Demining and mine risk education. Children have been and remain at high risk of being killed

and maimed by anti-personnel landmines and unexploded ordinance;

10. Thousands of families and their children who remain in displacement, some of them in transit

camps, with host families or without access to their lands for long period of time due to theestablishment of High Security Zones, notably in Shanthapuram and Indupuram (Mullativu

and Killinochchi districts) in Silvathurai and Mullikulam and in Sampur, Trincomalee district

and other ad hoc sites;

11. There has been no prosecution under the new law (Penal Code (Amendment) Act No. 16 of 1

January 2006) and that all those who recruited and used children continue to enjoy impunity.

The Committee noted the slow progress in investigating the whereabouts of the remaining

cases of children associated with the TMVP and the allegations of government officials’

complicity in the recruitment of children by the Karuna Group;

12. Little progress made since 2008 towards the adoption of the Assistance and Protection to

Victims of Crime and Witnesses Bill. There is currently no protection for witness protection

which hampers effective investigations into cases of recruitment and use of children in armed

conflict. The Committee expressed concern about cases of persons reporting childrecruitment and use in armed conflict who have been subjected to reprisals, intimidation and

threats;



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13. Children suspected of security-related offenses who may still be detained under the

Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005 and the

Prevention of Terrorism Act. The Committee was concerned that these children may be

detained in unpublicized places of detention for up to one year, and denied access to a

lawyer, family members, a judge or any other competent authority to challenge the

legitimacy of their detention;

14. Schools which remained occupied by the State party armed forces or used to host

“separates”. The Committee was concerned about the deteriorated state of school

infrastructure once the armed forces would leave them;

15. Slow progress in providing thousands of former child soldiers with the psycho-social support

they urgently need and that mental health services remain insufficient;

16. Proliferation of illicit small arms which continues to represent a major threat to childrensafety and security.

The Committee finally urged Sri Lanka (paras 48-50) to widely disseminate the Concluding Observations in

order to make the people, government officials, politicians, parliamentarians and human rights organisations

aware of the outcome, and to consult women’s and human rights organisations in the preparation of the next

periodic report. According to our observations, there is no such dissemination organised. Thus, minimum andwidely agreed standards in methodology are not met again.

Documents

UN TREATY BODIES ON SRI LANKA RECENTLY ISSUED CONCLUDING OBSERVATIONS AND RECOMMENDATIONS