The Legal Research and Advocacy Unit of the Law and Society Trust (LST) is currently co-ordinating a regional initiative aimed at enhancing the capacity of South Asian NGOs to use the UN human rights treaty monitoring regime in a sustained and effective way. South Asia is the only region without a regional mechanism for human rights. In these circumstances, the UN Treaty monitoring bodies play an especially important part in the protection and promotion of human rights in our region. Their strategy of scrutinising governments’ human rights records, enabling a dialogue with its officials and criticism of its acts and policies – effected through review of the reports submitted by States to the UN Human Rights Treaty Bodies – provide an important countervailing influence on States.

In addition, Treaty Bodies issue periodic comments, which explain and clarify the normative content of the different rights, and expanding the notions contained in Treaties, thereby ensuring that human rights do not remain static. Further, most Treaty Bodies provide a mechanism for the consideration of individual complaints regarding violations of rights covered by the Treaty. While several South Asians serve on Treaty Bodies and several act as Special Rapportuer of the UN Human Rights Commission, Special Representatives of the UN Secretary General and Special Advisors to key UN institutions such as High Commissioner for Refugees and High Commissioner for Human Rights, there still remains an under utilisation of the mechanisms provided via the Treaty Bodies, by South Asian activists.

This is partially due to the fact that working with the Treaty Bodies requires detailed knowledge of the extent of the rights covered, the powers of each committee and the means of accessing them (either via direct communication or shadow reports and special communiqués). The programme was designed to generate a South Asian network that will be able to provide mutual support among NGOs to monitor and participate in the process of reporting by SAARC states to the UN treaty bodies.

In the year 2004, the focus of this programme was changed from having an exclusive training focus to include an actual practical activity where the partners would also collaborate towards the drafting of a shadow report with regard to a treaty of particular importance to that country.

In accordance with this changed focus, LST worked with five regional partners in South Asia, namely Shirkat Gah (Pakistan), Commonwealth Human Rights Initiative (North India), Human Rights Centre of the National Law School University in Bangalore (South India), Ain O Salish Kendro (Bangladesh) and Informal Service Sector (INSEC), Nepal.

The regional partners chose particular treaties that they identified as being particularly important to their country, (including the International Covenant on Civil and Political Rights (ICCPR), Convention Against Torture (CAT), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and conducted national level activities around each treaty body during August-October 2004 and December-January 2004/ 2005. Sri Lanka chose as its focus, the International Covenant on Civil and Political Rights with special emphasis on life and liberty rights. A wrap-up regional meeting was hosted by LST from 1-3 April in Sri Lanka where the reports were discussed and shared.

Insofar as Sri Lanka was concerned, it was relevant that on September 18, 2002, the Government had presented the 4th and 5th Periodic Reports to the UN-HRC during the October- November 2003 sessions of the United Nations Human Rights Committee (UN-HRC) in Geneva in terms of Article 40, ICCPR. The previous State report had been submitted to the UN-HRC as far back as 1994 despite being required to submit the reports within a four-year interval.

After due consideration of Sri Lanka's combined reports, the UN-HRC, on October 31 and November 3 2003, adopted several Concluding Observations. On the positive side, inter alia, the UN-HRC appreciated Sri Lanka’s ratification of the optional protocol to the International Covenant on Civil and Political Rights (ICCPR) in October 1997, the entering into a ceasefire agreement by the Government with the LTTE and the establishing of the National Human Rights Commission.

Regrettably however, the UN-HRC observed that while containing detailed information on domestic legislation and relevant national case law, Sri Lanka’s report failed to provide full information on the measures taken to implement the Committee’s Concluding Observations on the country’s previous report. Hence Sri Lanka was requested to submit its next report in 2007 indicating specifically the measures taken to give effect to the Concluding Observations.

Most importantly, in the light of persistent reports of gross violations of human rights by State officials, and the perceptible lack of effective mechanisms within the country to prevent such violations, the UN-HRC in accordance with rule 70 paragraph 5, urged the state party to provide information within one year on four pressing issues as contained in paragraphs 8, 9, 10, and 18 of the Committee’s recommendations. This was, by all accounts, an unprecedented direction by the UN-HRC and testified to the gravity with which it viewed Sri Lanka’s continuing inability to conform to obligations imposed by the ICCPR.

This monitoring exercise was embarked upon by the LST to ascertain as to what measure of improvement had been evidenced in the safeguarding of the life and liberty rights of all those subjected to Sri Lanka’s jurisdiction, consequent to the issuance of the Concluding Observations of the UN-HRC. It records with appreciation, the practical input of the Asian Human Rights Commission (AHRC) in Hong Kong and the Geneva based World Organisation Against Torture (OMCT) into this process. The report is based on case studies, archival research, newspaper reports and a wide range of interviews with persons and bodies intimately involved in the protection and monitoring of the rights of life and physical security of persons in this country.

The draft report, published in this Issue contemplates the Phenomenon of Torture and Disappearances in Sri Lanka in the following context;

The Context of the Past: Emergency Law and Its Abuses.

The Context of the Present: How the normal law and law enforcement processes continue to be in line with past abuses of rights and practices of torture

a) How can this problem be analysed?

b) What has the State/ Government been doing and where has it failed?

Discussion of the draft report first took place during the National Workshop of the LST South Asia Treaty Bodies Programme held in August 2004. Thirty activists, legal practitioners and victims of abuses engaged in interactive sessions in relation to issues pertinent to the report and perspectives from the discussions are included in the draft monitoring report. The sessions were preceded by general analysis of international law norms and the UN systems by senior academics



and legal practitioners who had themselves, served in various capacities in mechanisms comprising part of the international monitoring regime.*

While the government follow–up report in the context of the UN-HRC Concluding Observation, is yet to be made public, despite the deadline of October-November 2004 being passed, the LST Review publishes the draft monitoring report with the objective of stimulating discussions in this regard. It is to be expected that further changes to the draft report would be made once the government follow up report is submitted to the UN-HRC.

The Review also publishes as an adjunct to this report, a draft Public Complaints Procedure for the National Police Commission in terms of Article 155G(2) of the Constitution.

It is hoped that the exercise will draw together a wider coalition of committed individuals who will work together to protect the rights of the victims in Sri Lanka, including not only legal practitioners, academics and activists working out of Colombo but also rural based activists who interact with state officers on a daily basis and most importantly, the victims for whom the phenomenon of torture and the prevalent impunity of custodial officers is no mere abstract notion but instead, most often, defines the frighteningly insecure manner in which they and their loved ones live their lives.

Kishali Pinto-Jayawardena