• HRCSL guidelines/recommendations on protecting HR defenders urge respect, effective remedies, lack of impunity, and legal reforms  

The State of Sri Lanka should respect and protect the rights of human rights defenders, individually and in association with others, for such activists to benefit from an effective remedy when their rights are allegedly violated. The State should accordingly ensure that there is no culture of impunity with respect to the violation of the rights of human rights defenders, and that those who violate such rights face appropriate legal consequences. What is more, the State should provide effective and adequate security to human rights defenders and their families when human rights defenders face violence, threats, retaliation, intimidation, de facto or de jure adverse discrimination, harassment, or any other arbitrary action by private actors.

This was a key point in the “General Guidelines and Recommendations on the Protection of Human Rights Defenders” issued by the Human Rights Commission of Sri Lanka (HRCSL) last week.

The draft report explained and emphasised the human rights defenders’ right to engage in activities that are protected by the Constitution under its Fundamental Rights. It added that the State has a responsibility to ensure a discrimination and oppression free environment for human rights defenders to operate. This includes not enacting or enforcing laws that may have detrimental impacts on human rights defenders.

Protecting human rights defenders

The human rights defenders’ right to be protected was one of the major concerns to which the report paid attention to. In this regard, the report discussed extensively the State’s responsibility to ensure their safety.

Noting that the State should actively promote the legitimacy of the activities carried out by human rights defenders towards the promotion and protection of human rights, the report said that it should create all conditions necessary in the social, economic, political, and other spheres for human rights defenders to engage in their activities. Measures that may be taken in this regard include publicly acknowledging the need to protect human rights defenders and the importance of their work, giving recognition to individual human rights defenders, constructively engaging human rights defenders on human rights issues, and consulting human rights defenders on proposed laws and policies concerning human rights. 

“The State should consider the particular challenges faced by human rights defenders from or representing marginalised and vulnerable groups including females, children, ethnic and religious minorities, persons with disabilities, internally displaced persons, migrant workers, and the lesbian, gay, bisexual, transgender, intersex, queer and questioning plus community, and adopt special measures to promote the legitimacy of their activities. For example, the violence, threats, retaliation, intimidation, de facto or de jure adverse discrimination, harassment, or other arbitrary action encountered by a human rights defender may be gendered and may target the gender identity of the human rights defender. Female human rights defenders currently face forms of gendered and sexualised harassment that include physical or sexual violence, threats of physical or sexual violence, intimidation and humiliation. Such harassment may also take place in digital spaces. Moreover, human rights defenders may face heightened risks on account of their ethnic or religious identity. State authorities should refrain from engaging in violence, threats, intimidation, retaliation or de facto or de jure adverse discrimination against human rights defenders or their families. They should refrain from subjecting human rights defenders or their families to any form of arbitrary action or harassment, including the unreasonable or unnecessary physical or digital surveillance of human rights defenders, the searching of premises or vehicles used by human rights defenders, or the seizing of equipment used by human rights defenders. State authorities should also refrain from engaging in smear campaigns, negative portrayals, or the stigmatisation of human rights defenders and their legitimate activities.”

It was also recommended that the State should take all necessary measures to ensure the protection of human rights defenders and their families against violence, threats, retaliation, intimidation, de facto or de jure adverse discrimination, harassment, or any other arbitrary action by private actors as a consequence of the legitimate activities of human rights defenders. The report added that State authorities should publicly condemn such action by private actors and ensure the accountability of such actors. It added that the State should refrain from enacting laws or instituting policies or procedures that criminalise or have the effect of criminalising the legitimate activities of human rights defenders, and should not subject human rights defenders to unwarranted legal and administrative proceedings or any other forms of the misuse of legal authority, including arbitrary arrest and detention, as well as other sanctions for their legitimate activities. Where criminal proceedings are instituted against human rights defenders, it explained that the State should ensure that all components of the right to a fair trial, including the right not to self incriminate, the right to access legal counsel, and the right to a full and fair hearing by an independent court are afforded to human rights defenders who stand accused. 

“The State should refrain from imposing any restrictions on any rights of human rights defenders guaranteed by the Constitution except where the restriction is permitted by Article 15. Such a restriction must be by an Act of Parliament, or an Emergency Regulation issued by the President under the Public Security Ordinance, No. 25 of 1947. Restrictions cannot be imposed through any other regulations or administrative circulars. When imposing a restriction on the rights of human rights defenders, the State must demonstrate the necessity of the restriction and only take such measures as are proportionate to the pursuance of legitimate aims set out in Article 15. The State should meaningfully consult human rights defenders on any new laws, policies or procedures designed to regulate the activities of human rights defenders.

Right to peaceful assembly, and freedom of association and movement

With regard to the rights and freedoms of peaceful assembly, and the freedom of association and movement, the report pointed out the State’s responsibilities, noting also the international obligations in that connection.

“The State should respect and protect the right of human rights defenders, individually and in association with others, at the domestic and international levels, to meet or assemble peacefully for the purpose of promoting and protecting human rights, as guaranteed by Article 14(1)(b) of the Constitution. Such right to peaceful assembly includes the right to be protected effectively under the national law when protesting, reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to the State, that result in violations of human rights, as well as human rights violations committed by private actors.”

Adding that the State should respect and protect the right of human rights defenders, individually and in association with others, at the domestic and international levels, to form, join and participate in non-Governmental organisations (NGOs), associations or groups for the purpose of promoting and protecting human rights [as guaranteed by Article 14(1)(c) of the Constitution], the report explained that such right to the freedom of association includes the freedom to solicit, receive and utilise resources for the express purpose of promoting and protecting human rights through peaceful means. The State should, the report said, refrain from enacting laws or instituting policies or procedures that impose undue administrative or regulatory burdens on human rights defenders in the formation, operation and financial management of NGOs, associations, or groups for the purpose of promoting and protecting human rights. 

Concerning the freedom of movement, it was noted: “The State should respect and protect the right of human rights defenders, individually and in association with others, at the national and international levels, to the freedom of movement for the purpose of promoting and protecting human rights, as guaranteed by Article 14(1)(h) of the Constitution. Such right includes the ability to move freely throughout the whole territory of Sri Lanka and to travel overseas for the purpose of promoting and protecting human rights. State authorities should refrain from imposing requirements for human rights defenders to seek prior permission to enter any part of the territory of Sri Lanka, or leave Sri Lanka, for the purpose of gathering information, documenting violations of human rights, assisting victims of human rights violations, and raising awareness about human rights.”

Recommendations

In view of fully implementing the above Guidelines, the HRCSL urged the Government to implement a number of recommendations.

A main recommendation was establishing a focal point within the Government to ensure that all measures to protect the rights of human rights defenders are monitored and evaluated, and to ensure coordination between various State institutions that are tasked with such measures. In addition, developing, in consultation with the relevant experts, appropriate gender sensitive protection policies, programmes and mechanisms to ensure the safety and security of human rights defenders (and their families) at risk was recommended. As per the report, these may include, where relevant, the provision of physical protection, temporary relocation, and other protective measures and support services under the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 10 of 2023. 

In its recommendations, the report said: “Develop, in consultation with the relevant experts, a comprehensive training and awareness programme for the State authorities, including the law enforcement authorities, the security forces, the Local Authorities and regulators on the protection of human rights defenders including on engagements with special categories of human rights defenders. The programme may feature a training manual with practical illustrations. It may also be integrated into the current curricula used for the training of law enforcement officers and security forces personnel. Review, in consultation with relevant experts, all laws and policies, including the Police Ordinance, No. 16 of 1865, the Penal Code Ordinance, No. 2 of 1883, the Quarantine and Prevention of Diseases Ordinance, No. 3 of 1897, the Public Security Ordinance, No. 25 of 1947, the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, the Computer Crimes Act, No. 24 of 2007, and the International Covenant on Civil and Political Rights Act, No. 56 of 2007, which have been misapplied to hinder the legitimate activities of human rights defenders. Legal provisions with vague and ambiguous definitions that lend themselves to broad interpretation and could be abused to prosecute human rights defenders for their legitimate activities should be amended or repealed.”

Another recommendation was reviewing, in consultation with the relevant experts, all current laws, policies and procedures, including the Voluntary Social Service Organisations (Registration and Supervision) Act, No. 31 of 1980, which are used for the purpose of registering NGOs, and for the administrative and financial regulation of NGOs. In this regard, the report recommended to ensure that the registration process is clear, simple and non-discriminatory, and that the administrative and financial reporting requirements are reasonable and are clearly provided for in law. It also urged to ensure that any inspections of NGO offices and financial records are carried out only on a clear legal basis and in a fair and transparent manner. 

Moreover, designating sufficient funds in the regular budget for the protection of human rights defenders at risk, emergency relief and other support services to human rights defenders, were recommended.