AFAD’s Open letter to Sri Lankan President Mahinda Rajapakse on the disappearance of human rights defenders Weeraraja and Muruganandan
20 December 2011
HIS EXCELLENCY PRESIDENT MAHINDA RAJAPAKSE
Office of the President,
Temple Trees, 150, Galle Road,
Colombo 3, Sri Lanka
His Excellency President Rajapakse,
The Asian Federation Against Involuntary Disappearances (AFAD) recently received reports regarding the enforced disappearance of two human rights defenders, Mr. Lalith Kumar Weeraraja and Mr. Kugan Muruganandan.
The above-mentioned persons were last seen leaving the residence of Mr. Muruganandan on Avarangal, Jaffna on a motorbike (license no NP GT 7852) on the 9th of December 2011 at 5:00 p.m. At the time they disappeared, they were organizing a press conference for the 10TH of December International Human Rights Day to project the protest action of the Movement for People’s Struggle in Colombo on 13th December 2011.
The families have not seen the two men since then. They were unofficially informed that both human rights defenders were kept in an unidentified detention facility in Jaffna district. By eleven in the evening of the 9th of December, the father of Mr. Weeraraja reportedly received phone calls threatening to kill Mr. Weeraraja and further stating “either you remove your son from Jaffna or we will do it for you.” The incident was lodged as a complaint under the Kosgama Police Station on the 11th of December 2011 (CIB 94/133).
Mr. Weeraraja serves as the Executive Committee member of the organization, “We Are Sri Lankans” and the Jaffna Coordinator of the Jana Aragalaya (People’s Struggle) movement while Mr. Muruganandan actively assisted Mr. Weeraraja in the conduct of his human rights work. Both defenders were campaigning against enforced disappearances, promotion of the rights of the internally displaced persons in the north and the release of political prisoners among others.
Prior to their disappearance, Mr. Weeraraja previously suffered from threats by the army and police regarding his work.
In April 2011, Mr. Weeraraja and a colleague were arrested by the Vavuniya police and threatened to be shot while putting up posters about enforced disappearances in the North.
On the 23rd of June 2011, he and another colleague were again abducted by officers of the Killinochchi army camp (Depo Junction) and were detained and interrogated in an abandoned ice-cream factory.
On the 14th of November 2011, Mr. Weeraraja with other human rights defenders suffered from severe beatings by unidentified men during a protest with the families of the disappeared in Jaffna in front of the Jaffna town bus stand. The beatings happened in front of the military, who did not intervene and stop the attack.
AFAD strongly condemns the disappearance of the Mr. Weeraraja and Mr. Muruganandan. The work of both human rights defenders’ is crucial in demanding justice for the victims of enforced disappearances of the Tamils in the North. The disappearance of Mr. Weeraraja and Mr. Muruganandan was clearly an act to suppress efforts to uncover the truth behind cases of disappearances in the past.
The Federation demands for the Rajapaksa administration to:
- Immediately intervene and investigate the disappearance of Mr. Lalith Kumar Weeraraj and Mr. Kugan Muruganandan particularly the allegations that government security forces are responsible for the act.
- The conduct of the investigations must lead to the disclosure of the whereabouts of the victims, the release of the victims from custody, the disclosure of the identity of the perpetrators including the grounds in which both human rights defenders were held. Specifically, the threatening phone calls received by Mr. Weeraraja’s father must be thoroughly investigated to establish leads to the whereabouts of the victims and the perpetratorsThe past harassments and threats to Mr. Weeraraja (April 2011 threats involving the posters of the disappeared, abduction and detention on the 23rd of June 2011 by officers of the army camp in Killinochchi, and the beatings on the 14th of November during the protest action by the families of the disappeared) must also be investigated with the erring officials sanctioned and brought before the court of law;
- Ensure that an impartial investigation will be conducted, with the proceedings held with transparency. Information regarding the case must be made accessible to the families, other parties concerned and the public;
- Ensure the protection of the families of Mr. Weeraraj and Mr. Muruganandan as well as other human rights defenders intervening with and on behalf of the victims in pursuing for legal remedies.
The Federation urges the Government of Sri Lanka for the compliance to Article 3 of the Universal Declaration of Human Rights stating “…the right to life, liberty and security of person”. The UN Declaration on the Protection of All Persons from Enforced Disappearance has emphasized enforced disappearance as an offense to human dignity and violates “…the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment,”. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED) under Article 1 subsequently reiterated the right not to be subjected to enforced disappearance and that no circumstances can be invoked to justify enforced disappearance.
Enforced disappearance brings immense suffering both to the victim and their families. We trust that the Rajapaksa administration will recognize state obligations prescribed under the international human rights instruments particularly in ending enforced disappearance and the firm refusal to tolerate enforced disappearance.
We trust that the Government of Sri Lanka will heed the plight of the family as they demand for the truth behind the disappearance of their loved ones, Mr. Weeraraja and Mr. Muruganandan, and the prosecution of perpetrators responsible for the assault to the dignity of both human rights defenders.
We shall await the immediate intervention regarding the said case.
For the protection of human rights,
MARY AILEEN D. BACALSO
Copy furnished to:
Mr. Mohan Peiris
Attorney General, Attorney General’s Department,
Colombo 12, Sri Lanka
Ms. Chandra Ellawala
Secretary, Human Rights Commission of Sri Lanka,
118, Barnes Place, Colombo 07, Sri Lanka
Inspector General of Police (IGP)
New Secretariat, Colombo 1, Sri Lanka
National Police Commission
3rd Floor, Rotunda Towers, 109 Galle Road,
Colombo 03, Sri Lanka
Mr. Gotabhaya Rajapaksa
Defence Secretary, Ministry Of Defence and Urban Development
15/5, Baladaksha Mawatha, Colombo 03, Sri Lanka
Ms. Kshenuka Senewiratne
Ambassador, Permanent Mission of Sri Lanka to the United Nations in Geneva
Permanent Mission of the Democratic Socialist Republic of Sri Lanka to the United Nations
56 rue De Moillebeau, 5th Floor, 1211 Geneva 19, Switzerland
Dr. Palitha T.B.Kohona
Ambassador & Permanent Representative of Sri Lanka to the United Nations in New York
Permanent Mission of the Democratic Socialist Republic of Sri Lanka to the United Nations
#630, 3rd Avenue (20th Floor), New York, NY 10017
United States America
Mr. Jeremy J. Sarkin
Chairperson, UN Working Group on Enforced or Involuntary Disappearances (UN WGEID)
c/o OHCHR-UNOG CH-1211 Geneva 10, Switzerland
Chairperson, UN Committee on Enforced Disappearance (CED)
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson – 52, rue des Pâquis, CH-1201 Geneva, Switzerland
Ms. Margaret Sekaggya
Special Rapporteur on the Situation of Human Rights Defenders
c/o Office of the High Commissioner for Human Rights – Palais Wilson
United Nations Office at Geneva
CH 1211 Geneva 10, Switzerland
Mr. Nawalage Bennet Cooray
Ambassador of Sri Lanka to the Philippines
7th Floor G.C. Corporate Plaza Building, No. 150 Legaspi Street, Legaspi Village
Makati City, Philippines
14 December, 2011
1. Impunity reports released
Expressing their grave concerns over the endemic impunity of Nepal for crimes committed both in the past and the present, AF and two other human rights watchdogs of UK and USA (REDRESS and Human Rights Watch respectively) have jointly released their reports and have reiterated their calls for the government to bring the perpetrators of gross human rights violations to book.
A report on de jure impunity titled “Held to Account: Making the Law Work to Fight Impunity in Nepal” has observed 20 pieces of Nepali legislations currently in force that are not only inconsistent with international standards but also contribute to impunity for serious human rights violations. The report also makes the case for legislative review and reform. It has mainly observed the flaws and lacunae in legislations like the Army Act, the Police Act, the Local Administration Act, the Forest Act, the Armed Police force Act, the State Cases Act any many others under which authorities concerned are given widespread powers to arrest and detain people amounting to serious breach of human rights of individual(s) and also points to areas in which the same law can be used as a positive force in shaping institutions and practices to fight impunity. The report focuses in particular on impunity for arbitrary arrest and detention, enforced disappearances, extrajudicial executions, rape and torture- all of which were widely committed during the conflict and which continue to greater or lesser extent today.
Another report “Adding Insult to Injury: Continued Impunity for Wartime Abuses ” construes impunity in terms of what is seen in practice as denial of justice to victims of violations- a de facto impunity. It expressly sets forth six emblematic cases of killings, disappearances and torture of the conflict and post-conflict Nepal and shows how the investigation authorities have been derelict in their duties and failed to conduct investigations even in the face of Supreme Court orders, fuelling impunity in practical terms. Against such a backdrop, the report calls on the government to abide by its public commitments and international obligations. The successive government’s moves vis-à-vis case withdrawal, amnesties and pardons as well as decisions with regards to laurelling the alleged perpetrators implicated for grave violations to lucrative positions, have also come under a close scrutiny and scathing critique of the report. It has flatly denounced such acts, tagging them as stumbling blocks to those thousands of victims who are ever waiting for justice.
Click the link below to read the full version of the reports:
December 8, 2011. The government on Wednesday asked the Office of the High Commission for Human Rights (OHCHR-Nepal) in Nepal to end its operations in Nepal, notwithstanding assurances from political parties and mounting pressure at national and international level for the latter’s year-long extension. The Ministry of Foreign Affairs (MoFA) has asked the OHCHR to wind up its activities within six months as agreed during the last term extension in June. OHCHR’s term has expired on Thursday.
The opposition parties have, however, strongly objected to the government’s move and have pronounced it as what they called “a unilateral decision”, citing former consent among the parties to offer a final extension to the UN human rights body. They demanded the government to scrap its decision lest they are compelled to take stern steps. Maoist Chairman Prachand and Premier Baburam Bhattarai had previously agreed on one final extension of the OHCHR. Contrary to this, the MoFA on Wednesday wrote two separate letters to the OHCHR headquarters in Geneva and its country office in Kathmandu stating that the government has not taken any new decision with regards to its term extension and that by default the June 1 decision was in force under which it has to prepare exit strategy and pack up within six months followed by a short “wrap up” time. In response to the UN Secretary General Ban Ki-moon’s plea to extend the term of the OHCHR-N, Prime Minister Bhattarai said that efforts are being carried out towards consolidating and strengthening local institutions including the National Human Rights Commission “(NHRC). Paradoxically, the government has asked the NHRC not to investigate into conflict-related cases.
The international community has also opposed the government’s decision. The Asian Human Rights Commission (AHRC) has reiterated the necessity of OHCHR’s presence in Nepal from the vantage point of continued challenges still seen in the human rights sector and the rule of law. In its annual report on the state of human rights protection in Nepal, AHCHR emphasizes that Nepal should abide by its commitments made during the Universal Period Review in January in which the government had committed to defending human rights and maintaining zero tolerance against impunity. Nepal’s peace process is still in transition and extreme political polarization and politicization of almost all aspects of social life, political instability, feeble institutions and escalating insecurity are seen as stumbling blocks in guaranteeing human rights and ensuring the rule of law. Still, lots of cases of grave violations are reported, with a few investigated and adjudicated, let alone thousands of cases of grave violations relating to the conflict period. Given such bleak situation, the exit of OHCHR-N would further jeopardize the peace process and the entire issue of accountability and justice.
3. HRO sensed a foul play in TRC and Disappearance Commission Bills
The Government’s initiatives to establish the much-hyped the Truth and Reconciliation (TRC) and the Disappearance Commissions have met with controversies and contentions, for human rights watchdogs and civil society have sensed a foul play the government is intending to act against the conflict victims. Their dream of justice is likely to shatter under the amnesty or similar provisions the government is proposing to incorporate in the bills. The government’s explicit focus on reconciliation and reparations have left many to suspect whether or not the commissions are mandated to hold individual accountable for the crimes committed in the past. A truth commission is valued as an important post-conflict mechanism. So the establishment of such a commission in Nepal sans judicial prosecution or individual accountability could preclude the objective of achieving a meaningful sense of justice by victims and by society. Reconciliation and reparations, as are the battle cry of the government in the bills, have an effect to supersede the part of prosecution.
The government is all set to repeal section 24 of the TRC draft bill under which the commission is mandated to recommend for prosecution and has focused on loose reconciliation and reparations provisions. This provision, if implemented, is sure to make the commission a paper tiger. If the government really wishes justice to happen to victims then the commission should be given wider mandates to recommend for prosecution.
Furthermore, the bills tabled before the legislative parliament have come with major changes in Section 25 which prevents any sort of amnesty and pardon for the crimes listed in the Section. Again, the government is intending to repeal crimes other than rape and disappearance from the list. Averting amnesty and pardon for rape and disappearance and not for other ones like torture, extrajudicial killings, abduction etc. manifests the government’s ploy to grant immunity to Maoists, as the security personnel (army, police and armed police force) are mostly implicated in the crimes of rape and enforced disappearance during the conflict. Amnesty provisions for gross human rights violations and violations of international humanitarian law, including extrajudicial execution and torture are inconsistent with Nepal’s obligation under international law.
The Transitional Justice Advocacy Group has vehemently denounced the government’s proposals for TRC bills and has reiterated that law or mechanism lacking the minimum international human rights standards aimed at establishing truth and delivering justice will not be acceptable. In its press release, the TJ Advocacy Group has set forth minimum standards that should be incorporated in the proposed draft bills.
Please click the link below for the press release:
4. Interim Order: Not to pardon Balkrishna Dhungel, CA members convicted for murder
An Interim Order from the Supreme Court has stalled the controversial amnesty process for Maoist CA member Bal Krishna Dhungel, convicted by the Supreme Court for the murder of Ujjan Kumar Shrestha. In what can be analyzed as the Maoists’ attempt to test the waters for the evasion of prosecution for crimes committed during the period of conflict, the Maoist-led government has put its credibility at stake by sheltering a convicted offender, much to the vexation of victims and anyone rooting for the rule of law. The Maoists seem to have feared that this case would precipitate the prosecution of similar other cases implicating their rank and file cadres in serious human rights abuses during the conflict. Arguing that every case from the conflict period is a political crime, the Maoists remain effortful to let all their cadres accused of rights abuses go scot free. It appears that the Maoists are testing the strength of the human rights movement in Nepal via this case. Balkrishna Dhungel is the only person convicted of an offense from the conflict period. He was convicted for homicide and sentenced to life imprisonment and confiscation of property as he was found guilty of murdering Ujjan Kumar Shrestha on 24 June 1998 owing to personal matters. He served time in pretrial detention and also subsequent to the decision by the District Court of Okhaldhunga on 10 May 2004. The Appellate Court, Rajbiraj, later repealed the decision of the District Court Okhaldhunga and acquitted him four months before the Comprehensive Peace Agreement. The victim’s family moved the Supreme Court against the decision of the Appellate Court. The Supreme Court on 3 January 2010 upheld the decision of the district court. After the police failed to arrest and incarcerate Dhungel and the government attempted to seek amnesty for Dhungel, the victim’s family filed a writ requesting an interim order for the implementation of the SC verdict. The Court on 21 June 2011 clarified that there was no legal obstacle to incarcerate Dhungel.
Visit links below for details:
10 December 2011
Impunity for Enforced Disappearance Must End NOW!
Today, as the world commemorates the 63rd International Human Rights Day, the Asian Federation Against Involuntary Disappearances or (AFAD) calls on all governments particularly those in the Asian region to stop enforced disappearance and to end impunity.
Enforced disappearance is considered one of the cruelest human rights transgression. It is a multiple and continuous violation of the basic human rights not only of the direct victims but also of their families and the greater society. It inflicts untold sufferings to the victims who are forcibly taken by agents of the States and denied access to legal safeguards by removing them from the protection of the law. It causes ill-effects to the victims’ families, not knowing the fate and whereabouts of their loved ones. Mothers, wives, and daughters are usually left without any means to tend their families. In South Asian context, wives of the disappeared are called “half-widows’ who are stripped of legal status to obtain pensions and other means of support. Children of the disappeared equally suffer. They are deprived of a normal family and a good future. No doubt, enforced disappearance sows fear and terror in society.
Many governments employ this atrocious practice as a tool of state repression and political witch-hunt. It is a major human rights concern of more than 80 countries based on the 2010 report of the UN Working Group on Enforced or Involuntary Disappearances, a thematic UN body created in 1980 to monitor the incidences of enforced disappearances worldwide. Many cases occur in Asian countries, the continent that submitted the highest number of cases.
The Asian region lacks a strong mechanism for redress. There are no available domestic laws penalizing disappearance as a separate and autonomous criminal offense. Not only are cases of enforced or involuntary disappearances difficult to investigate and prosecute. They recur with each passing day in many Asian countries. Perpetrators can easily walk away from criminal accountability.
Efforts by several governments along with families of the disappeared and international human rights organizations have made possible the adoption of the International Convention for the Protection of All Persons from Enforced Disappearance in 2006 by the United Nations General Assembly and its consequent entry into force on 23 December 2010. To date, this international human rights instrument has 90 signatories and 30 States Parties.
It is but imperative for all states to accede to the international treaty against enforced disappearances without reservation and immediately adopt effective national laws to abolish this horrendous practice.
While these legal measures and mechanisms may not bring back the disappeared, they can certainly help in finding truth and justice and in preventing cases from happening again. It only takes one small step to have a leap of change.
Ending impunity should both be a demand and a call for unity and action.
For the disappeared and their families, the 63rd anniversary of the Universal Declaration of Human Rights will have a deeper meaning through governments’ accession to the International Convention for the Protection of All Persons from Enforced Disappearance and the enactment of laws criminalizing disappearances and their full implementation.
Signed and authenticated by:
MUGIYANTO MARY AILEEN BACALSO