Will ‘Freedom of Assembly’ in Sri Lanka come up this September in Geneva?

by Sanja de Silva Jayatilleka

The 51st regular session of the UN Human Rights Council will be held from September 12 to October 7, 2022 in Geneva. Sri Lanka will be taken up on the very first day under item two of the agenda, soon after the oral update of the High Commissioner for Human Rights at 9 a.m. Geneva time, following an interactive dialog of the Council on Myanmar scheduled for 12 noon.

At the Interactive Dialog, member states of the UN will respond to the report of the High Commissioner on her investigation mandated by HRC Resolution 46/1. At this session, we may hear something of the progress made by the new mechanism set up specifically for Sri Lanka at the Office of the High Commissioner for Human Rights (OHCHR), called the Sri Lanka Accountability Project (SLAP).

Coming so high up on the agenda of the Council, Sri Lanka has quite a lot to deal with already, on the accountability front. However, it may well see itself having to respond to questions on a few other Human Rights which have not received much attention in Sri Lanka until now. Looming large at the present time, it is clear that Freedom of Assembly will be given a fair bit of attention of the Council, this September.

The Right to Peaceful Assembly

The Human Rights Council has many procedures and mechanisms at its disposal to achieve its goal of mainstreaming the promotion and protection of human rights. “Special Procedures” with thematic mandates are such mechanisms. These experts report annually to the Human Rights Council, and the majority of the mandates also report to the General Assembly. One such, the Special Rapporteur on Freedom of Peaceful Assembly, has already issued a warning to Sri Lanka at the last session of the Council in June 2022.

Clément Nyaletsossi Voule, the current holder of the mandate, reported to the UNHRC at the 50th session of the Council held last month, that Sri Lanka had some way to go with regard to Freedom of Assembly. Since then, the Sri Lankan state has swayed so wildly in the opposite direction to that advocated, with shocking disregard to its civil rights obligations, that it is very unlikely that the situation around the Aragalaya will not be taken up at the September Sessions.

The surprise attack in the dead of night on protesters preparing to leave the protest area, by hundreds of armed military personnel, plainly disproportionate, surrounding the few straddlers from all sides, will no doubt take centre-stage in any discussion on this theme. I wouldn’t be surprised if the accusation, denied by the authorities, of embedding contractors (mercenaries) among them, may come up during the interactive dialog. In April 2022, the relevant Working Group of the Council called for inputs on “victims of mercenaries, mercenary related actors, and private military and security companies.”. This is an area that the OHCHR is seized with currently.

Voule’s report presented in June 2022 (A/HRC/50/23/Add.3) had already warned that “Sri Lankan police frequently appear to respond to protests that are disfavored for political reasons by arresting their participants, in violation of the right to freedom of peaceful assembly.” He recommended the development of clear guidance “to facilitate the organization of assemblies according to law, both by organizers and law enforcement authorities”.

He further warned Sri Lanka to refrain from “using national security legislation, including the Prevention of Terrorism Act, to criminalize protesters legitimately exercising their right to freedom of peaceful assembly”, citing instances where excessive force was used to disperse assemblies which violated international human rights law.

The Special Rapporteur had already taken note of the Emergency regulations imposed in March 2022, saying that he is “is seriously concerned with the steps taken from the end of March 2022 on, in response to large-scale protests, including the declaration of a state of emergency and the publication of emergency regulations.”

Some of his observations at the time are still relevant to the situation today:

=The Special Rapporteur has received reports of the use of tear gas, water cannons and live ammunition in response to protests, leading to serious injuries and deaths. The Special Rapporteur and other mandate holders have previously expressed their concern with the approach adopted.

=The Special Rapporteur has also received reports that an order was issued for armed forces to open fire in response to the looting of public property—a serious violation of international standards on the use of force and the right to life.

=The Special Rapporteur has also received reports of arbitrary arrests of protesters taking place.

Given the recent dramatic arrest of an Aragalaya activist without warrant on board a Sri Lankan Airlines flight to the horror and outrage of the passengers, well ahead of the parliament’s approval for the declaration of the Emergency, itself mired in controversy, in addition to the subsequent arrest of yet another activist while trying to board a bus in similar circumstances causing it to be reported as an “abduction”, forming a pattern of what seems to be a round-up of the prominent Aragalaya protestors, the Human Rights Council will have much to say on the matter.

The Expert’s earlier Report reminds Sri Lanka of its checkered history in relation to this area of Human Rights, by calling it to ensure that incidents of human rights violations by security forces, namely the “Rathupaswala, Welikada prison and Roshan Chanaka cases” be “independently and transparently investigated and prosecuted”.

Special Procedures of the Council

The Independent Human Rights experts of the UNHRC who are known as Special Procedures, take up country visits, act on complaints, conduct thematic studies, engage in consultancy and advocacy, contribute to the development of Human Rights standards, raise public awareness, and provide technical assistance.

The Human Rights Council facilitates communication with the Special Procedures through an on-line form (Office of the High Commissioner for Human Rights – Submission of information to Special Procedures (ohchr.org). They ensure that “Any individual, group, civil-society organization, inter-governmental entity or national human rights bodies can submit information to the Special Procedures.” They only ask that certain criteria be observed in the submissions as follows:

= the communication should not be manifestly unfounded or politically motivated;

=the communication should contain a factual description of the alleged violations of human rights;

=the language in the communication should not be abusive;

=the communication should be submitted on the basis of credible and detailed information;

=the communication should not be exclusively based on reports disseminated by mass media.

They assure that it is not required that “the concerned State has ratified an international or regional human rights treaty, or that the alleged victim has exhausted domestic remedies to send a communication.”

The final report submitted to the Council takes into account the communications received and processed by them, in arriving at their recommendations, and in any further action the Council may take in relation to their submissions.

Given that the Sri Lanka Human Rights Commission has itself already issued a statement following the State’s attack on the Aragalaya promising an investigation of its own, the UN in Geneva is certain to refer to it. Sri Lanka and Sri Lankans have much to occupy their collective conscience.