Countries at the Crossroads 2004 - Sri Lanka

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Executive Summary

Author

Karin Deutsch Karlekar is a senior researcher at Freedom House. She serves as editor of the annual Freedom of the Press survey and authors country reports on South Asia.

In late 2001, after 18 years of civil war, the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (Tamil Tigers, or LTTE), a terrorist organization whose stated goal is a separate ethnic Tamil state in the north and east of the country, declared unilateral ceasefires and entered into a process of negotiations facilitated by the Norwegian government. The ensuing peace process has led to a reduction in human rights violations by the security forces and the return of more than 200,000 internally displaced people to their homes, as well as real hope that the government and LTTE can resolve their differences and arrive at a mutually acceptable constitutional and political settlement that will lead to a lasting peace.

Nevertheless, Sri Lanka's respect for the rule of law and for civil liberties continues to raise concern. Despite an overall reduction in the number of human rights abuses committed by police and security forces since the ceasefire, torture and prolonged detention without trial continue. A lack of aggressive prosecution of past abuses contributes to a climate of impunity for those who have overstepped the bounds of the law. Trafficking in women and children, as well as discrimination against the Tamil minority, continue unabated. Although the rule of law is generally observed, the judiciary's reputation for independence is being progressively called into doubt by the stalemate over the conduct of the chief justice, and its efficiency is being compromised by a continuing lack of resources and training, as well as pervasive corruption at lower levels.

Transparency within the state apparatus has emerged as a growing problem, prompted by regular allegations of corruption against high-level officials that are not thoroughly investigated. In addition, laws and other mechanisms intended to curb and prosecute corrupt behavior are applied inadequately. In this context, observers believe that it is crucial that current promises of foreign aid for economic development and reconstruction be disbursed in a manner that is aboveboard. The lack of a right to freedom of information and a general culture of governmental secrecy continue to hinder public and press access to information about state policy and procedure, thereby impeding overall transparency and accountability.

Another key issue is the behavior of the LTTE itself. As the focus of this report is state policy and performance, primary attention is given to the areas of Sri Lanka that are under the government's control. However, in large sections of the north and east of the country, the LTTE has effective control on the ground and operates a parallel administration that includes schools, hospitals, courts, and police and other law enforcement personnel. Despite its involvement in the peace process, the LTTE continues to commit serious human rights abuses, including extrajudicial murder, torture, arbitrary arrest and detention, extortion, and the recruitment of children as soldiers. The organization also appears unwilling to transform itself into a democratic force, preferring instead to assassinate or otherwise intimidate any Tamil politicians, government officials, and civil society actors who may contest its claim to be the sole representative of the Tamil people. During 2002-03, the Sri Lankan government and the Sri Lankan Monitoring Mission (SLMM), responsible for enforcing the ceasefire, appeared unwilling to address these concerns fully, possibly because they were wary of jeopardizing the peace process as a whole.

Substantive progress on the negotiating process with the Tigers has also been hindered by the particular structure of power sharing in Sri Lanka, in which an elected president with broad executive authority shares political power with an elected parliament headed by a prime minister. President Chandrika Kumaratunga heads the Sri Lanka Freedom Party (SLFP), while Prime Minister Ranil Wickremasinghe leads the United National Front (UNF) coalition government. As a result, the president's party currently serves as the main opposition party in parliament. The cohabitation between the two rival leaders became increasingly tense throughout 2003. In addition, their conflicting views on the substance and shape of the peace process, coupled with the fact that the president is legally allowed to dissolve parliament or declare a state of emergency, means that government-appointed negotiators are unable to provide guarantees that their decisions will be honored by both branches of government.

Editor's Note

On November 4, 2003, President Kumaratunga plunged Sri Lanka into uncertainty and political turmoil when she declared a state of emergency, sacked three cabinet ministers – of defense, interior, and information – and assumed their portfolios, and temporarily suspended parliament. She also deployed troops to be stationed outside government-run media outlets and sacked the chairman of the government-owned Lake House media group. To justify these steps, she expressed concern that proposals made public by the LTTE on October 31 concerning the establishment of a Tiger-dominated interim authority in the northeast were a threat to national security. However, analysts believe that an equally compelling impetus for her actions was the declaration by the ruling United National Party (UNP) that they intended to table an impeachment motion in parliament against the chief justice, whom the president views as a key ally.

Although the state of emergency was pulled back and parliament resumed functioning on November 19, Sri Lanka remained at a political impasse. The president and prime minister held three rounds of negotiations, but their discussions did not lead to a resolution of outstanding differences by their stated deadline of December 15. Both parties were unwilling to push for holding snap elections, as neither was likely to win a convincing majority. In mid-January, Kumaratunga announced that she intended to continue as president until 2006, one year beyond her electoral mandate (she claims that, as a result of a secret swearing-in ceremony held in December 2000, she is entitled to stay in office one year longer than expected).

Meanwhile, the ceasefire with the LTTE continued to hold. The UNP government refused to enter into further negotiations with the Tigers, claiming that it is pointless for them to do so while the president controls the defense ministry. Observers believed that meaningful peace talks would not resume until the political standoff between the opposition and the UNP was resolved, or until a general election was held. Although all three actors insisted that they were committed to a peaceful resolution of the conflict, this outcome was under threat as long as the government remained divided.

Civil Liberties – 4.59

The state's record on respecting the civil liberties of Sri Lankans is mixed. Despite improvements in 2002-03, citizens continue to be protected inadequately against state terror, unjustified imprisonment, and torture. Legal provisions make torture a punishable offense (the minimum punishment is seven years' imprisonment), and in the past several years the government has been developing regulations to prosecute and punish those responsible for torture.¹ In addition, the constitution allows victims of torture to file civil suits for compensation in the courts, and damages have been awarded in a number of cases. However, torture by the security forces and police, particularly of detainees during interrogation, continues with relative impunity, and the majority of past offenses have gone unpunished as well. The third annual report of the National Human Rights Commission revealed that during 2000, the commission had received 552 complaints of torture.² In August 2003, the Asian Human Rights Commission demanded action against members of the police in the central province of Kandy, who allegedly tortured two teenage boys in July and then framed false charges against them.³

Cases of arbitrary arrest and indefinite detention of citizens, particularly in the troubled north and east, have sharply declined following the implementation of the February 2002 ceasefire. The law currently provides that a detainee must be told the reason for his arrest and must be brought before a magistrate within 24 hours, and in the majority of cases, suspects are produced in court within several days of their arrest.⁴ However, under the Prevention of Terrorism Act (PTA), security personnel can arrest and detain suspects indefinitely without court approval, and confessions obtained under any means, including through the use of torture, are admissible. Although no new arrests under the PTA were reported in 2002-03, some of those detained previously under the PTA remain in detention; according to Amnesty International, 65 political prisoners continued to be held without charge under PTA legislation at the end of 2002.⁵ A 2003 report by the International Legal Assistance Consortium (ILAC) estimated that overall, at least 5,000 uncharged prisoners remain incarcerated, some for more than five years.⁶ In a reflection of the improved atmosphere in the north following the ceasefire, no custodial deaths of Tamils at the hands of security forces were reported. However, several unexplained deaths in custody did occur at police stations and prisons in the south.⁷

The army and security forces sometimes use excessive force when dealing with peaceful public protests, although such instances are infrequent. More worryingly, the state continues to be incapable of protecting civilians in the north and east from a pattern of abusive behavior on the part of the LTTE. The LTTE's tactics of intimidation against both their critics and the general civilian populace include executions and torture, arbitrary abductions and detentions, extortion and theft, the forcible conscription of children, and political assassinations.⁸ Human Rights Watch has alleged that a pattern of political killings, mostly of members or former members of Tamil political groups that are opposed to the LTTE, have not been adequately reported on or investigated by either the SLMM or government authorities.⁹ Throughout Sri Lanka, politically linked violence and crime are growing concerns. Some local politicians reportedly maintain personal armed gangs, which are not subject to official police control.¹⁰

The Supreme Court has special jurisdiction over cases of alleged violations of fundamental rights and freedoms guaranteed by the constitution. In addition to the courts, in which individuals can file suit over the abridgment of their rights, the Human Rights Commission offers another mechanism for redress. In the past year, some cases were filed under laws to punish torture, but no convictions have been reported.

Despite a constitutional provision for equal rights for all citizens, neither women nor minorities are able to enjoy these rights fully. The law provides for equal employment opportunities in the public sector, but women have no legal protection against the discrimination that sometimes occurs in the private sector. Laws prohibiting trafficking and providing penalties of up to 20 years' imprisonment for those convicted have not led to a decline in trafficking in women and children, which occurs primarily for the purposes of forced labor and sexual exploitation.¹¹ Although women have equal rights under national, civil, and criminal law, matters related to the family, including marriage, divorce, child custody, and inheritance, are adjudicated under the customary law of each ethnic or religious group, and the application of these laws sometimes results in discrimination against women. Sexual abuse, rape, and domestic violence also continue to be serious problems.¹² While the incidence of custodial rape in the northeast has declined dramatically, occasional cases of rape involving security force or police personnel continue to be reported.

The majority of Sri Lankan society is Sinhalese, while Tamil and Muslim minorities comprise roughly 18 percent and 7 percent respectively of the population. Members of minority ethnic groups, along with all other Sri Lankan citizens, are granted fundamental civil rights by the constitution and can file petitions in the courts if they feel that these rights have been violated. Tamils maintain that despite the provision of equal rights, they face systematic discrimination in several matters controlled by the state, including government employment, university education, and access to justice. Much of the alleged discrimination is related to the issue of language. Although Tamil was reinstated as an official language (along with Sinhala) by an amendment to the constitution in 1987, a gap remains between recognition and the practical implementation of the provisions that recognition entails.¹³ For example, language-based segregation continues within the organizational structure of educational institutions. In addition, it remains difficult for some Tamil defendants to get a fair legal hearing, as most court proceedings in the south are in either English or Sinhala, and most laws are not published in all three languages, despite legislation requiring it.¹⁴

In 2002-03, thousands of Tamils whose ancestors were brought to Sri Lanka from India to work as indentured laborers in the 19th century did not qualify for Sri Lankan citizenship and faced discrimination and exploitation, particularly in the allocation of state funds for education.¹⁵ However, in July 2003, the government announced that it would grant citizenship to about 170,000 previously stateless "Indian" Tamils.¹⁶ Societal discrimination against ethnic minorities continues, punctuated by occasional outbreaks of violence directed at them. Tensions between the Tamil and Muslim populations of the north and east often result in sporadic violence and rioting that has left a number of Muslims dead or injured and hundreds displaced.¹⁷

The majority of Sinhalese are Buddhist, while the majority of Tamils are Hindus with a substantial number of Christians among them. Members of all faiths are legally allowed to worship freely, and this right is generally respected, although the constitution stipulates that Buddhism is accorded "the foremost place" and the state has a duty to "protect and foster" it.¹⁸ The government has sought to limit the number of foreign religious workers granted temporary residency permits, and evangelical Christian groups meet with some hostility and harassment from Buddhist clergy and others opposed to their work.¹⁹ Rights groups report occasional discrimination and violence against religious minorities, and the LTTE discriminates against Muslims in the areas under its control. Departments within the ministry of Buddha Sasana and religious affairs deal with the minority Hindu and Muslim religious communities, particularly with regard to cultural issues and the maintenance of historical sites; they also monitor relations with Christian denominations. The state does not otherwise interfere with the internal workings of faith-related organizations and does not place restrictions on religious observance or ceremonies. Although religious education is a mandatory subject in schools, students are allowed to choose the religion they wish to study.

The state recognizes and generally respects the right to freedom of association. A number of organizations held peaceful political and nonpolitical rallies during 2003, and the state does not compel citizens to belong to any association. However, the LTTE does not allow for freedom of association in the regions under its control and reportedly uses coercion to force civilians to attend pro-LTTE rallies. Sri Lanka has a strong trade union tradition, and the constitutional right of workers to form and join unions is upheld. Both foreign and local nongovernmental organizations (NGOs) generally operate free of state interference, and government officials are responsive to their views.²⁰ Although NGOs are officially required to submit details of funding sources and action plans as part of the registration process, most do not comply with these requirements and are not penalized for it.

Recommendations

The primary concerns for the government should be ending the problems of torture and, to a lesser extent, arbitrary arrest and detention throughout Sri Lanka. Cases of those who have been arrested under the PTA and held without trial or charge should be examined expeditiously. The police and other security forces should receive training on general human rights issues, particularly on acceptable interrogation techniques. A concerted effort should be made to investigate accusations of torture and of custodial rape and murder, and those responsible should be prosecuted. The government should take steps to enhance prosecution of the crime of trafficking in women and children by more aggressively investigating and prosecuting cases under already existing legislation.

Rule of Law – 4.49

The judicial branch of government comprises the Supreme Court, the Court of Appeal, the high courts, and district and magistrate courts. The constitution grants the president the power to make high-ranking judicial appointments, including of the chief justice, the president of the Court of Appeal, and all judges in the Supreme Court and Court of Appeal, who are appointed for life terms. These judges can be removed only by parliament with presidential approval.²¹ A three-member Judicial Services Commission (JSC) made up of the chief justice and two Supreme Court judges appoints, transfers, and dismisses lower-court judges.

Basic provisions of the rule of law are generally respected in both civil and criminal matters. Those accused of a crime are considered innocent until proven guilty. The accused has the right to be informed of the charges and evidence against him, to present witnesses and cross-examine opposing witnesses, and to have legal representation and the right of appeal. Defendants in the vast majority of criminal cases are tried in public by a jury, with the exception of cases brought to trial under PTA legislation. Counsel is provided for indigent defendants in criminal cases before the high court and the courts of appeal but not in other cases.²² It is important to bear in mind, however, that these provisions apply only to areas under the government's control. In regions controlled by the LTTE, the LTTE operates its own full legal system, including police, law courts, and a law school, and requires that all Tamil civilians use this system rather than the state judicial system. Judges in these courts have little or no legal training and operate as agents of the LTTE rather than as independent prosecutors.²³

Successive governments have generally respected the constitutional provision for an independent judiciary; judges can make decisions in an atmosphere free from overt intimidation from the legislative or executive branches, and authorities comply with judicial decisions. Nevertheless, sitting government officials are seldom investigated while still in office or prosecuted for abuse of power or other wrongdoing. At the lower levels of the judiciary, corruption is fairly common among both judges and court staff. Those willing to pay bribes – for example, to expedite cases or to ignore evidence – have more efficient access to the legal system.²⁴ A survey conducted by the MARGA institute, a local think tank, found that the public's main areas of concern with the judiciary were that it was partial, inaccessible, and susceptible to corruption.²⁵

An issue of particular importance is the widespread public perception that in certain cases, judicial authorities are not entirely free from outside influence and are subject to increasing political pressure. In particular, concern has been raised regarding the behavior of the present chief justice, Sarath Nanda Silva, who was appointed while under investigation for corruption. The UN Special Rapporteur on the Independence of Judges and Lawyers has repeatedly condemned his appointment and conduct since becoming chief justice, and in April 2003 the Asian Human Rights Commission issued a condemnation of Silva's behavior.²⁶ According to the Free Media Movement, while serving as chief justice he has narrowed the scope of human rights litigation and has consistently defended the government in legal actions relating to political disputes.²⁷ In a breach of established procedure, either he or the JSC, which he heads, have dismissed a number of judges without holding an inquiry or disciplinary hearing, and it has been alleged that some of these dismissals have been politically motivated.²⁸ In December 2002, ten judges petitioned parliament seeking the chief justice's dismissal on the grounds that they and others were dismissed wrongfully or because they had made decisions that were politically unpalatable. However, the president, with whose party the chief justice is openly aligned, has threatened to suspend parliament if it considers the petition.²⁹ The current political impasse over the chief justice's conduct raises larger questions about the extent of the politicization of the judiciary and the will of the government to resolve the issue meaningfully.

The quality and efficiency of the Sri Lankan judicial system also continue to be hampered by a lack of resources and capacity, as well as inadequate legal training and access to legal information by members of the legal profession. Courts are not equipped in terms of facilities, procedures, or personnel to handle the current high level of litigation, and the resulting backlog means that delays of five years or more are common before a case is resolved. The JSC is also currently unable to carry out its administrative functions effectively due to a lack of qualified staff. Judicial officials and lawyers receive insufficient training and do not have easy access to information on the latest amendments to laws and judicial decisions. The Sri Lankan government has stated a commitment to reforming the judiciary and in 2000 embarked on a World Bank – funded project to strengthen aspects of the legal system.

The police, military, and internal security service are under civilian state control. The president serves as commander-in-chief of the armed forces and has the power to declare war and peace. The ministry of the interior controls the police force, while the ministry of defense has authority over the army, navy, and air force. Complaints against the police are handled by senior officials within the police department, and departmental regulations provide for disciplinary procedures. The police and military do not interfere in the political process.

According to the Heritage Foundation's 2003 Index of Economic Freedom, there is a moderate level of protection of private property rights in Sri Lanka. Property rights are generally recognized and enforced, and the legal system is nondiscriminatory with regard to foreigners' acquisition and disposition of property. Nevertheless, farmers working on state-owned land under various tenure agreements are not subject to well-defined property rights.³⁰ Moreover, the legal system does not sufficiently enforce property rights and contracts.³¹

Recommendations

Planned improvements to address the quality of judicial staff and their access to legal information are a positive step toward enhancing the professionalism of the judiciary and need to be followed through. The key problem yet to be addressed remains the fact that the judiciary's reputation for independence has been tarnished by the present chief justice's behavior while in office, in terms of both judicial decisions and his actions toward other judges. The political impasse over the question of his dismissal should be resolved as expeditiously as possible. In addition, larger structural changes should be considered, such as giving an independent panel the power of appointing judges or changing the criteria for membership in the JSC.

Anticorruption and Transparency – 3.97

Corruption has emerged as a major concern in Sri Lankan politics, business, and society. However, although it has been condemned by both major political parties while they were in opposition, once in power, governments have proved less than zealous in their attempts to clean up the system.

The economic environment, which has been characterized by moderate levels of government regulation and state intervention in the economy, does not provide adequate safeguards against corruption.³² While regulatory mechanisms are in place, some regulations are difficult to access, updates to laws are not readily available, and the regulatory system is perceived as allowing for too much bureaucratic discretion. Lengthy administrative procedures, ineffective enforcement mechanisms, and lethargy on the part of public-sector employees also reduce the system's transparency.³³ However, deregulation is a key aspect of the current government's economic policy, and the recommendations of a committee formed in 2001 to address regulatory impediments are slowly being implemented.

Sri Lanka has an extensive public sector, with employees in government and quasi-government agencies making up nearly 20 percent of the workforce.³⁴ The government suspended most recruitment to the public sector in June 2002 and plans to rationalize public-sector employment further as part of its reform plans. Potential conflicts of interest on the part of public officeholders remain a concern. The fact that politicians can appoint public servants at all levels of the bureaucracy encourages the formation of networks of patronage and nepotism. For example, local politicians have the power to appoint and transfer local police officers, making it relatively easy for them to pressure the law-enforcement arm of the state to comply with their dictates.³⁵ While the educational system is not affected by pervasive graft, one recent survey noted that approximately 15 percent of respondents had experienced an incident of corruption in the education sector in the preceding year.³⁶

The legal and administrative framework currently in force is inadequate in terms of either promoting integrity or preventing and punishing the corrupt behavior of public officials. Despite the presence of a number of structural safeguards against corruption, laws are generally not enforced, and investigative bodies are unable to function effectively. One example is the Declaration of Assets and Liabilities Law (DALL) of 1975, which mandates annual declarations by those who hold public office.³⁷ Refraining from making a declaration or deliberately withholding or distorting facts are criminal offenses, and members of the public have a right to examine a declaration by requesting a copy and paying a fee. However, in 2003, less than five percent of parliamentarians declared their assets, and others made false declarations or did not file submissions within the required time period.³⁸ Political parties are not required to disclose their sources of funding, which enables business interests to fund political parties, possibly with the hope of influencing policy outcomes.³⁹

An attempt was made to promote good governance and transparency with the passing of the 17th Amendment to the constitution in 2001. The amendment established a 10-member constitutional council and gave it the power to recommend and approve presidential nominations to a number of independent commissions. However, in March 2003, Transparency International Sri Lanka criticized the president's delay in appointing nominees to several of these.⁴⁰ In particular, the nomination of a new chief election commissioner has become mired in charges of politization, with the president having twice rejected the nomination of the council on the grounds that their nominee had leanings toward the UNP and would not play an independent role during elections.⁴¹ In addition, most of the commissions have inadequate organizational structures, financial resources, staff, and regulatory powers and are not functioning effectively.

The history of the Permanent Commission to Investigate Allegations of Bribery or Corruption, created in 1994, illustrates some of the flaws in the structure of the system.⁴² The new commission was designed to be an independent entity. The legislation defined corruption as an offense in addition to bribery and expanded the definition of public servants who could be subject to prosecution. However, the commission has been unable to operate effectively thus far due to discord between the commission and the government, a lack of resources and financial dependence on the treasury, and the fact that the relevant legislation does not empower the commission to launch independent investigations (it can only launch an investigation if a complaint is brought before it). In addition, critics allege that none of the cases investigated are serious cases involving senior politicians. However, despite its deficiencies, it has conducted some anticorruption education and awareness programs with the assistance of civil society groups.

An atmosphere that discourages accountability, combined with the fact that the current legal framework does not afford protection to whistle-blowers, deters those who wish to investigate, report on, or expose corruption. As there is no law that provides job protection to whistle-blowers, government employees in particular are afraid of coming forward and making complaints to the bribery commission for fear of losing their jobs.

Given that few official mechanisms are capable of effectively publicizing or punishing corruption, the media has a key role in reporting on corruption issues. Although some editors refrain from publishing sensitive stories about certain individuals due to outright bribery or economic pressure from business interests (in the form of selective advertising), a number of zealous investigative journalists do strive to expose corrupt practices and regularly highlight the issue.

In response to increasing pressure from the media and from members of the government, in May 2003 Prime Minister Ranil Wickremasinghe appointed a committee to look into charges of corruption against ministers and senior UNF politicians.⁴³ The UNF also suspended four politicians at the local government level, and Wickremasinghe attempted to introduce a code of ethics for members of his party.⁴⁴ No current or former politician has thus far been sentenced for bribery or corruption, although more than a dozen cases were under investigation or prosecution in 2003. One primary problem is that the leaderships of both parties are lukewarm about the prospect of prosecuting high-ranking members of their own cabinet or parliamentary contingent.

The constitution gives parliament control over public finances through parliamentary committees and secretaries in each ministry. The auditor general, who is appointed by the president, is responsible for auditing public accounts and reporting the findings to parliament.⁴⁵ Under the Fiscal Management (Responsibility) Act passed in January 2003, which was intended to improve transparency, the government is required to present a comprehensive picture of its fiscal policies.⁴⁶ In June 2003, the finance minister released a Mid-Year Fiscal Position Report, which was made available to the public.⁴⁷

Corrupt behavior is facilitated by the fact that government policies and practices are less than completely transparent. Sri Lankan law does not guarantee freedom of information, nor has the government historically had a policy of proactively releasing state-held information to the public.⁴⁸ Instead, it frequently uses national security as justification for denying the public and journalists access to information.

Creating a transparent and competitive mechanism for the awarding of government contracts has traditionally been a problem. In the past, procurement procedures for bidding on major government projects were neither transparent nor predictable. Military procurements were often made outside established procedures, resulting in no transparency whatsoever.⁴⁹ However, the present government has taken several steps to reduce corruption in the awarding of contracts. Procedures have been changed so that all tenders are scrutinized by several different groups for irregularities. They now must be routed through a special cabinet subcommittee before being presented to the cabinet for final approval. Decisions presented to the subcommittee are supposed to be vetted thoroughly by treasury officials. In addition, the government has appointed two special committees in the defense ministry in an attempt to provide greater oversight of the defense spending process.

According to public perception, politicians and their associates appropriate a significant proportion of the aid that is received by Sri Lanka.⁵⁰ Low rates of aid utilization are a concern, particularly in the wake of the June 2003 Tokyo donors' conference, when bilateral and multilateral donors pledged a total of $4.5 billion over a four-year period to aid in Sri Lanka's reconstruction. The government has proposed the development of a new mechanism to disburse donor funds to the north and east.⁵¹ However, Transparency International Sri Lanka, as well as other civil society groups who have emphasized the need for an accountable disbursal mechanism for reconstruction funds, has expressed concern that the proposed mechanism does not adequately disclose any guidelines for transparency.⁵² In addition, given the LTTE's stated desire for some form of control over the disbursal process, their lack of accountability with regard to financial matters is another issue that will need to be addressed.

Recommendations

Most important, priority should be given to establishing a mechanism to ensure that the potential influx of foreign aid that was promised at the June 2003 Tokyo donors' conference is disbursed in a fair and transparent manner. Existing laws, such as the DALL, need to be strictly enforced, and existing institutions, such as the bribery commission, need to be allowed to function fully and effectively – if necessary by giving them additional powers and resources, such as their own investigative staff. Legislation offering protection for whistle-blowers is needed. The passing of freedom-of-information legislation should be made a priority. An important statement would be made if Sri Lanka signed the ADB-OECD anticorruption initiative, as its South Asian neighbors did in 2001.

Accountability and Public Voice – 4.45

Regularly held elections in which most citizens can participate, coupled with vibrant media and civic society sectors, help ensure that the Sri Lankan state remains accountable. State authority is divided between a president and a unicameral 225-member parliament, both of which are directly elected by secret ballot on the basis of universal adult suffrage. Elections are held every six years for the president and at least every five years for the parliament. Recent elections have been considered generally free and fair, although marred by some violence and voting irregularities.⁵³ Moderate levels of political violence are a longstanding concern; in the December 2001 parliamentary elections, various monitoring bodies recorded thousands of incidents of intimidation and dozens of deaths during the campaign and election period.⁵⁴ The LTTE refuses to allow elections in the areas under its control, and although Tamil political parties were able to campaign during the 2001 parliamentary elections, a number of their leaders have been targeted for assassination by the LTTE. The parliament passed an amendment in September 2001 to establish an independent commission on elections that would be charged with ensuring free and fair elections; however, this legislation has not yet been implemented.⁵⁵

Elections are open to multiple parties, and fair electoral laws and equal campaigning opportunities ensure a competitive political process. Although 13 parties are represented in the current parliament, two main parties dominate politics: the SLFP, headed by President Chandrika Kumaratunga and the principal component of the People's Alliance (PA) coalition, and the UNP, headed by Prime Minister Ranil Wickremasinghe, which leads the governing UNF coalition. These two parties, which have distinct ideologies and policy prescriptions, have rotated in power since independence. A number of smaller parties, including those that represent extreme nationalist viewpoints and the interests of the Tamil and Muslim minorities, lend their support to coalition governments and frequently shift allegiances.

The president has a broad range of executive powers, including the constitutional right to dissolve parliament for any reason at any time after it has completed a year in office. In recent years, the fact that the executive and legislative branches of government have been controlled by competing parties headed by longstanding political rivals has led to tension and, at times, an inability to effectively construct and put forward coherent state policies. As a result, the resolution of issues and adoption of policies has sometimes been slow and inefficient. In particular, differences of opinion over the correct way to approach the peace process have led to an inability to formulate a united strategy toward the LTTE and their specific demands during the ongoing negotiations. In addition, the fact that the president can dismiss the government at any time limits the latter's ability to be a strong and effective negotiator that can follow through on its promises.

Women and minorities are both represented in government. Besides the fact that the president is female, the current parliament has nine female members, and one woman serves in the cabinet as the minister for women's affairs. Recent parliaments have had roughly 10 percent Tamil and Muslim members respectively. A number of political parties, such as the Sri Lanka Muslim Congress (SLMC) and the Eelam People's Democratic Party (EPDP), exist to represent the interests of these two communities and have participated in recent coalition governments.

The independent civic sector is vibrant and operates freely in most of the country. A number of domestic groups monitor political rights, civil liberties, and the conduct of the government. They engage with state officials and offer constructive criticism on official policies and practices. There are no reports that the state or other actors have pressured either foreign or domestic funders of public policy institutes. Citizens and organizations such as the Centre for Policy Alternatives occasionally undertake public-interest litigation. However, in areas under LTTE control, critical civic groups are severely repressed and intimidated.

Under current procedures, the ministry of justice drafts legislation and presents it to parliament for its approval. According to the constitution, a citizen can challenge legislation within seven days of its being published in the government gazette before it is passed into law. In practice, this does not allow individuals adequate time to critique pending legislation. In addition, some bills or their amendments are never published, which means that they are not available for public scrutiny at all. The World Bank has criticized the lack of public participation and transparency in the legislative drafting process.⁵⁶

Freedom of expression is provided for in the constitution, and independent Sri Lankan media outlets generally express their views openly, although several factors continue to hinder press freedom. With the repeal of emergency regulations governing coverage of the civil war in 2001, direct state censorship of the media ceased. Criminal defamation laws, which had been used to harass critical journalists and media outlets in the past, were repealed by the parliament in June 2002, and all pending defamation cases were dropped. However, some journalists continue to practice self-censorship, particularly in the LTTE-controlled areas of the north and east.

Although journalists are occasionally arrested and detained, none are currently in prison as a result of freely expressing their views. However, they continue to face some harassment at the hands of police and security forces, political party supporters, and the LTTE. In the past year, a number of reporters have been threatened or subjected to physical violence, and several newspaper offices have been attacked and destroyed. The situation remains far worse in the north and the east, as the LTTE does not permit freedom of expression in the areas under its control and continues to intimidate and threaten a number of Tamil journalists and other critics.⁵⁸

Recommendations

The establishment of a viable, effective, and independent electoral commission would help to ensure that future elections are not marred by political violence and allegations of corruption. Mechanisms should be put in place to require that all proposed legislation be made available to the public for their scrutiny and comment. Although the situation for the press has dramatically improved over the past several years, media independence could be strengthened by a gradual divestiture of state ownership of media outlets. The formation of an independent media council that could serve as a mechanism for the self-regulation of the media sector should be expedited.

Notes

1 Sri Lanka, Country Reports on Human Rights Practices – 2002 (U. S. Dept. of State, Bureau of Democracy, Human Rights, and Labor, 31 March 2003), 4.

2 Sri Lanka, Annual Report 2002 (London: Amnesty International, 2002).

3 Champika Liyanaarachchi, "No Curbs on Police Atrocities in Sri Lanka," OneWorld.net, 29 August 2003.

4 Country Reports (U.S. Dept. of State), 5.

5 Annual Report 2002 (Amnesty International).

6 Report of a Mission to Sri Lanka (Stockholm: International Legal Assistance Consortium [ILAC]), March 2003, 14.

7 Human Rights Situation Report Sri Lanka 2002 (Colombo: Forum for Human Dignity), 6.

8 Situation Report (Forum for Human Dignity), 5; see also Child Conscription and Peace: A Tragedy of Contradictions (Jaffna: University Teachers for Human Rights [UTHRJ]), 18 March 2003.

9 "Sri Lanka: Political Killings During the Ceasefire" (New York: Human Rights Watch, 7 August 2003).

10 Report (ILAC), 12.

11 Country Reports (U.S. Dept. of State), 17.

12 These issues have been documented in the report by Ameena Hussein, Sometimes There Is No Blood: Domestic Violence and Rape in Rural Sri Lanka (Colombo: International Centre for Ethnic Studies [ICES], 2000).

13 Sri Lanka: Country Assistance Strategy, Appendix I (Washington, DC: World Bank, 2003), 3; see also Report (ILAC), 9.

14 Country Reports (U.S. Dept. of State), 6.

15 Ibid., 14; see also "Sri Lankan Citizenship for Indian Tamils," BBC News, 7 October 2003.

16 "Indian Tamils to Win Citizenship," BBC News, 11 July 2003.

17 "More Die in Sri Lankan Riots," BBC News, 18 April 2003.

18 Teresita Schaffer and Nisala Rodrigo, "Sri Lanka: Finding the Start of a Long Road," South Asia Monitor (Washington, DC: Center for Strategic & International Studies), 1 January 2003.

19 Country Reports (U.S. Dept. of State), 10.

20 Ibid., 12.

21 Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary (London: International Bar Association [IBA], November 2001), 14.

22 Country Reports (U.S. Dept. of State), 6.

23 Ibid., 7.

24 Report (ILAC), 16.

25 "Corruption Costs," Lanka Monthly Digest (June 2003), 112-13.

26 "On the misconduct of the Chief Justice of Sri Lanka, Sarath Silva" (Hong Kong: Asian Human Rights Commission, 1 April 2003).

27 Chief Justice Sarath Nanda Silva and the Crisis of Sri Lanka's Judiciary (Colombo: Free Media Movement, n.d.).

28 Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary (IBA, November 2001), 23-24.

29 Report (ILAC), 17.

30 Sri Lanka Country Commercial Guide FY 2004: Investment Climate (Washington, DC: U.S. Dept. of State, 2003), 7.

31 "Project Appraisal Document on a Proposed Credit for a Legal and Judicial Reforms Project" (Washington DC: World Bank, 12 May 2000), 3.

32 Index of Economic Freedom 2003, Heritage Foundation, http://cf.heritage.org/index/country.cfm?ID=134.0.

33 Sri Lanka Country Commercial Guide FY 2004: Investment (U.S. Dept. of State), 8.

34 Sri Lanka Country Commercial Guide FY 2004: Economic Trends and Outlook (U.S. Dept. of State), 6.

35 Report (ILAC), 12.

36 "Corruption in Sri Lanka – Executive Summary" (Colombo: Transparency International Sri Lanka [TISL], 2002), 6.

37 H.L. de Silva, "Constitutional and Legal Aspects of Corruption in Sri Lanka" in. K.M. de Silva, G.H. Peiris, and S.W.R. de A. Samarasinghe, eds., Corruption in South Asia: India, Pakistan and Sri Lanka (ICES, 2002), 249.

38 Champika Liyanaarachchi, "Sri Lanka Nets Record Tax Revenue, but Ignores Big Evaders," OneWorld.net, 4 September 2003.

39 Interview with J.C. Weliamunia, Executive Director, Transparency International Sri Lanka, 9 June 2003.

40 Press Release (TISL), 11 March 2003.

41 Champika Liyanaarachchi, "Sri Lanka Poll Watchdog Can't Bark Without Head," OneWorld.net, 21 August 2003.

42 Sunil Ponnamperuma, "Permanent Commission to Investigate Allegations of Bribery or Corruption 1994-99: A Study in Institutional Failure," in de Silva, Peiris and Samarasinghe, eds., Corruption in South Asia (ICES, 2002).

43 Champika Liyanaarachchi, "Sri Lanka Fiddles While Corruption Soars," OneWorld.net, 8 August 2003.

44 "TISL Urges Politicians to Display Dignity and Integrity" (TISL), 14 July 2003.

45 S. Lakshman Athukorala and Barry Reid, Diagnostic Study of Accounting and Auditing Practices in Sri Lanka (Asian Development Bank, 2002), 83.

46 Sri Lanka: Country Report (London: Economist Intelligence Unit, August 2003), 16.

47 "Transparency International Urges Scrutiny of Fiscal Position Reports by Public and Parliamentarians" (TISL), 7 July 2003.

48 "Whistle Blowing and the Need for Protective Legislation" (TISL), 22 July 2003, 3-4.

49 Sri Lanka Country Commercial Guide: Economic Trends (U.S. Dept. of State), 8-9.

50 "Readership Perceptions," Lanka Monthly Digest (June 2003), 110-11.

51 Sri Lanka Country Commercial Guide: Economic Trends (U.S. Dept. of State), 2.

52 "Transparency and Accountability Demanded in the Proposed Mechanism for Development of North and East" (TISL), 11 June 2003.

53 Country Reports (U.S. Dept. of State), 11.

54 See, for example, Final Report (Colombo: Committee to Investigate into Election-Related Violence, n.d.).

55 Country Reports (U.S. Dept. of State), 12.

56 "Project Appraisal Document on a Proposed Credit for a Legal and Judicial Reforms Project" (Washington, DC: World Bank, 12 May 2000), 4-5.

57 "Government Minister Threatens to Kill Newspaper Editor" (Paris: Reporters Sans Frontieres, 1 August 2003).

58 See, for example, "Tamil Tigers Attack Tamil-Language Weekly 'Thinamurasu' Again" (Paris: Reporters Sans Frontieres, 15 August 2003).