Preliminary findings of Country Visit to Sri Lanka by the Special Rapporteur on freedom of religion or belief

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26 August 2019,
Colombo

Introduction

I am happy to have undertaken, at the invitation of the government of Sri Lanka, a visit from 15-26 August to assess the situation of the freedom of religion or belief in the country, in my capacity as the United Nations Special Rapporteur on freedom of religion or belief. My visit is the second by a UN mandate holder on freedom of religion or belief since the late Asma Jahangir undertook a country visit in 2005 to identify any existing or emerging obstacles to the enjoyment of the freedom of religion or belief in Sri Lanka by all. 

At the outset I would like to pay respect to the memory of all those who were killed in the Easter bombings and in other acts of violence that followed and extend my condolences to their loved ones. I wish those who were injured a speedy recovery and solidarity to everyone else affected by these senseless acts of violence.

I am grateful that the government decided to proceed with my visit, which had been planned from last year, at this time, despite the challenges faced by the authorities in addressing issues arising from the Easter bombings and subsequent violence. I wish to thank the Government for the cooperation extended in facilitating my visit and for the great support by the UN team in Colombo.

During my visit, I met with the Speaker of the Parliament, the Leader of the Opposition, the Ministers for Foreign Affairs, Hindu Affairs and Buddhist Affairs, the Attorney General, the Secretary for Christian Affairs, senior officials dealing with Muslim Affairs, and the Director General of the Archaeology Department. I also attended a Government’s stakeholder meeting chaired by the Foreign Secretary bringing together senior representatives of relevant ministries and agencies.  Furthermore, I met with the Chairpersons of the Office for National Unity and Reconciliation and National Human Rights Commission.  Outside Colombo, I met with the Governors of the Northern Province and of the North Western. My field visits covered Vavuniya, Mullaitivu, Jaffna, Trincomalee, Kanniya, Batticaloaa, Kattankudy, Kandy, Digana, Kurunegala, Kottamba Pitiya, Puttalam, Negombo, Kottaramulla, Pasyala, Divulapitiya, Minuwangoda and Ja-Ela. In Punthotam and Pasyala, I met with some refugees who faced religious persecution from their country of origin. Additionally, I  met with representatives from different religious communities, civil society organisations and research institutions. 

Today, I present my preliminary findings, including some main observations to which I wish to draw your attention. The official final report will be presented to the Human Rights Council in March 2020. In preparation of the report, I will continue to engage and work in consultation with the Government and all relevant stakeholders to receive more information and clarification of these preliminary observations.

• Religious landscape and political development

According to 2012 census, the Sinhalese make up 74.9% of the population and are predominantly Buddhist, or belong to the minority Christian community. Tamils comprise approximately 15.3% of the population and are mainly Hindus, with some belonging to Christian churches. The Muslim community, form the third largest ethnic group at 9.2% of the population. Buddhism is the largest religion of Sri Lanka with 70.2% of the population practicing the religion; then, there are Hindus with 12.6%; Muslims with 9.7% and Christians with 7.4%. The census indicates that most Muslims are Sunni while the Christians are mainly Roman Catholic. There are small numbers of Baha’is, Shia (Bohra community), Sufis, Ahmadis, Jehovah Witnesses, Methodists, Pentecost and Evangelicals.  There are also the Veddas, an indigenous community,.  who practice traditional belief.

The country has emerged from a long internal conflict, which generated tremendous security challenges.  The evolution of the conflict, and the details of these events have been  described in various reports of the Office of the United Nations High Commissioner for Human Rights.

The reverberations of the ethnic conflict continue to be felt however in the political, social and economic spheres and impact on the enjoyment of the right to freedom of religion or belief. While some progress has been made in the post-conflict issues pertaining to transitional justice, significant gaps exist, particularly with regard to upholding accountability, as well as strengthening guarantees of non-recurrence.

Presidential and Parliamentary elections in 2015 brought in a government with a pledge to strengthen fundamental freedoms and the rule of the law that comprises of inclusiveness, justice and respect for human rights to all of the people of Sri Lanka.  This led to the adoption of Human Rights Council resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka, co-sponsored by the Government of Sri Lanka, by which the government pledged to implement a robust transitional justice process and reaffirmed that ‘all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity…’.

The situation in the country has been dramatically affected by the recent terrorist attacks on 21 April 2019, allegedly organized by three local Islamist terrorists groups. These attacks killed more than 250 people and were the deadliest ones since the end of the internal conflict.

In response, the government proclaimed a State of Emergency and security forces were given sweeping powers to arrest and detain suspects for extended periods. Under the State of Emergency, some religious communities have been affected in their practice and manifestation of religion or belief, while the suspicion and distrust among religious communities also increased over time and led to an increase of hate speech and violence against the Muslim community. Many complained that they have faced increasing harassment and victimisation based on their religion or belief identity. The State of Emergency has now lapsed.

• Positive developments in Sri Lanka

As noted by the Special Rapporteur on the rights to freedom of peaceful assembly and association in his end of mission statement of his visit to Sri Lanka (18-26 July 2019)1 , Sri Lanka has taken significant initiatives to strengthen its democracy and rule of law by introducing the nineteenth Amendment to the Constitution in 2015. The Government has also taken the positive step to reinstate the Constitutional Council with an enhanced role in approving and designating members to the independent commission and institutions as well as the selection of the President for the various offices. The work of National Human Rights Commission has been granted A-status according to Paris Principle. Furthermore, the Government has also established the Office on Missing Persons (2016) and the Office for Reparations (2018) in line with Human Rights Council Resolution 30/1. 

Generally, I have received reports of many new initiatives for promoting reconciliation and peaceful coexistence launched in the country. I note the establishment of the Select Committee of Parliament (SCP) on 4 September 2018 to study and report on Communal and Religious Harmony in Sri Lanka that comprises 24 members of Parliament from ruling and opposition parties.  Since its appointment, the SCP has identified existing challenges, provided a list of recommendations to overcome some of the challenges2 and come up with an implementation plan for the proposed recommendations. Moreover, the SCP launched a “Diyawanna Declaration” at the Special  All-Faith and All-Party Conference in April 2019, which among others,  recommended “the need for all party leaders including  the President, the Prime Minister and the Leader of the Opposition to work in cooperation with each other regardless of narrow political, religious or party differences in order to ensure all citizens are able to exist without fear or suspicion and to ensure the security of the country and its people”.3 

I am also encouraged by the work of the Office for National Unity and Reconciliation (ONUR). The 2017 National Policy on Reconciliation and Coexistence Sri Lanka4 provides good practice guidelines that include equality, human rights, justice and rule of law as well as diversity for the overall direction to national reconciliation and coexistence. ONUR also launched a project known as “Heal the past, build the future” that brings together the religious leaders, youth, government representatives and civil society actors to raise awareness in transforming conflict. It has also specific committee appointed for peacebuilding and reconciliation process. 

At grassroots levels, I have seen active religious leaders coming together across different religions to promote interreligious harmony. For example, there are quite a number of District Interreligious Committees functioning under the support of National Peace Council of Sri Lanka and Interreligious Forum by Caritas Sri Lanka.  The civil society is also highly vibrant in the work of promoting freedom of religion or belief.

The government’s response to the displacement of refugees and asylum seekers by violent mobs or other pressures after the Easter bombing by offering them temporary shelter deserves praise and I hope these measures will continue until the few remaining families are re-settled.

• Main challenges to the right to freedom of religion or belief (FORB)

State obligations in regard to the protection of the right freedom of religion or belief include both negative obligations to respect the rights of individuals to exercise their freedom of religion or belief within the law, and positive obligations to protect these rights against infringement by third parties/non-state actors. The latter also includes facilitating arrangements that would enable the exercise of these rights. While some concerns were aired about the former set of obligations, namely state interference in the ability of individuals to exercise their freedom of religion or belief, the main challenges to the enjoyment of this right in Sri Lanka manifest in the state’s failure to fulfil its positive obligations towards rights-holders.

The State does not appear to impede the freedom of thought, conscience and religion or belief and the country has a long tradition of embracing religious pluralism. The choice of an individual to have, to adopt or to change one’s religion or belief is guaranteed in law in Sri Lanka and broadly conforms to international standards. 

However, even where the state does not impose specific restrictions on the manifestation of religion or belief, there were frequent reports of acts of intolerance from one religious community to another along with the failure of the state to protect individuals and communities targeted by such hostility. Often, the Muslim communities and new Christian churches in particular faced a range of harassment and assaults. This ranges from interruption of worship, damage to places of worship, physical assaults on clergy, intimidation, mob violence towards the community or clergy, demands for registration of the church or mosque and restricting the use of places of worship, the obstruction of religious rites such as those related to burial ceremonies or access to cemeteries, incitement to violence to the community and many other acts of intolerance. 

The Muslim communities have faced increased hostility especially after the April bombings. Prior impunity has strengthened the anti-Muslim groups. Weak and un-coordinated responses to anti-Muslim violence have seen the rise in violence and attacks on individuals and the communities in some parts of the country. 

The right to proselytise and conversion

As I learned from my interlocutors, the right to proselytise does not appear to be respected or protected in Sri Lanka.  The Supreme Court decided in 2003 and 2017 that the right ‘to propagate’ one’s religion is not protected by the Constitution. The decision has affected many of those whose religion requires them to share their religion or belief with others.  It should be clarified that writing, issuing or disseminating relevant publications on one’s religion or teaching in places suitable for these purposes is part of freedom of expression and manifestation of religion or belief that is protected under international law. 

Hostilities towards non-Roman Catholic Christians and Muslims appear to be grounded in a fear that possible conversions that take place threaten established hegemonies or that such efforts “insult” the doctrines and beliefs of the dominant religion in a given area. Other perpetrators of intolerance attempt to justify their prejudice by claiming that conversion involves ‘exploitation’ of vulnerable persons. 

Discrimination based on religion or belief in law and in practice

While the Constitution of Sri Lanka protects freedom of religion or belief and its manifestation under Article 10 and 14 (1) e, Article 9 of the Constitution declares, “Buddhism shall be given the foremost place by the State”.  The Government argues that this does not reduce the protection provided to other religions as guaranteed under Article 10 and 14 (1) e as well as Article 12 that stresses equality of all. Controversially, a 2003 Supreme Court ruling determined that the State was constitutionally required to protect only Buddhism, as other religions were not accorded the same fundamental right of state-provided protection. I heard frequently from my interlocutors that they feel that the State was structurally unable to treat other religions on an equal basis owing to this provision and ruling. 

Many of these religious communities pointed to the fact that the State has allowed Buddhist monks to erect shrines or Buddhist statutes even in areas where there is little Buddhist presence whereas other communities were told that they should not hold prayer services even in private homes in areas where there are few Christians or with a Buddhist majority. There are also competing claims to historic religious sites and a perception that State agents are not sufficiently impartial in these cases. Often, many described problems of double standards in law enforcement depending on which community offends or finds itself offended by the actions of other. For instance, I heard of cases of violence against minorities perpetrated by the majority community where perpetrators are clearly identified in video recordings but remain unaccountable for years after the incident. 

Reversely, many complained, that when a complaint is brought forward by members of the Buddhist community, action is swift and, at times, disproportionate. I heard examples of some arrested under the ICCPR Act for seemingly trivial reasons (a fictional story, a symbol in a dress) that were deemed to provoke “religious disturbance”, while I heard of impunity for serious incidents of incitement to violence such as those that led to the Aluthgama riots in 2014. 

Registration

There is moreover a lack of clear guidelines for the registration of religious organisations or places of worship. State should recall that registration is not an obligation but an offer by the State to enable any religious community to acquire legal personality for various operational and functional purposes. The right to practise and to believe is not subject to permission by any State. 

Minority communities complain that the registration process is opaque and slow; that registration requirement is not clear and is a cumbersome process, and that it also results in monitoring and harassment by local police and authorities. Permits for construction of houses of worship may also be denied based on the opposition of the local community. Unregistered houses of worship have been closed. For example, the National Evangelical Christian Alliance of Sri Lanka reported that 30 churches were forced to close in 2014 while many mosques that have completed their constructions are left unusable as well.

Education

There are also complaints of discrimination at schools where the intake of the students from different religious communities is not based on a fair quota system.  Information on different religious denominations is not taught and there is little understanding among the younger generation of the religious pluralism that characterises Sri Lanka.

Refugees

Deficits in the application of the rule of law appears to have significant impact on communities and individuals in vulnerable situations. Refugees and asylum-seekers in the Negombo area, all from Muslim-majority countries, were targeted, threatened and displaced in the aftermath of the Easter bombings. While some have been resettled to third countries or relocated in the country, there are still at least 55 people who have no means to survive if they were to leave Punthahom. Some Muslim groups expressed dismay that they were unable to offer these refugees support and safety for fear of inviting increased attacks on the community and for the lack of funding.

Women and gender-based discrimination

I received reports that the government refuses to acknowledge the order of Bhikkhuni nuns. Bhikkunis are not permitted to have their ordination on their National Identity Card (NIC) whereas Bhikkus (male) are afforded this privilege.

Women’s experiences of ethno-religious hostility including violence, displacement and stereotyping do not receive attention nor redress. Many of the conspiracy theories and tropes about Muslims target women and their reproductive capacity. Women’s human rights activists appear to be at risk from fundamentalist members in their own religious communities. Their work, beliefs and religious identity are discredited by male leaders who claim that they are violating religious norms. 

Members of LGBTQI+ community also reported that religious teaching is a significant factor in the marginalization of the LGBTQI+ communities and leads to deep personal struggles for those who attempt to reconcile their religious identity with their sexuality.  Often, the perspectives of LGBTQI+ and women are excluded from inter-religious dialogues and processes of reconciliation. Reconciliation, through ethnic and religious lenses, without considering gendered impacts, is not inclusive. 

After the April bombings, one measure included in the emergency regulations proclaimed by the government was the ban on face-covering in public places. This has led to a rise in intolerance towards those who observe religious dress codes, especially among the Muslim women in public institutions such as hospital, schools and public transport. Some people stop Muslim women and girls simply with hijab or abaya from entering some hospitals or exam halls, or make verbal insults at work places. I also received reports that alleged violations of the ban on the face-veil were sometimes met with harsh reaction, including imprisonment, which is  a draconian measure. 

Furthermore, the entire Muslim community is excluded from the General Marriage Ordinance i.e. there is no option for Muslims to opt-in or opt-out of the Muslim Marriage and Divorce Act (MMDA). The application of the MMDA has long been a subject of concern for those advocating for gender equality and has been the subject of several reviews, focusing on both substantive aspects of the law and its administration. Based on patriarchal readings of sharia, the MMDA violates international human rights standards including those articulated by the UN CEDAW. Furthermore, the law set up Quazi courts to settle marriage disputes, but women are not permitted to be Quazi judges. However, the long-awaited reform of the MMDA has started to progress recently.

• Religious extremism and politicisation of religion

Following the Easter attack, the media have pointed to the fact that Sri Lanka was a victim of the global trend of Islamist extremism. Even within the Government, there is little recognition that religious extremism of all sorts might have been an underlying problem in the country. Instead, they referred to “sporadic small incidents”. Many interlocutors with whom I spoke to however indicated that many were already highly concerned by the influence of extremist views of different religious figures, including the Buddhists, from earlier on. Besides, concern was expressed that some politicians intentionally instrumentalize religions, possibly for political gain, especially during elections. 

As religious extremism has been used to incite violence  in Sri Lanka, it would be important to identify and respond to the root causes of such extremism. While radicalization processes remain contested, deficits in good governance especially the capricious application of the rule of law that undermine trust in  public institutions are frequently implicated, as are persistent perceptions of insecurity, injustice, inequality and alienation. Moreover, such tensions can become a tinderbox that could flare up with even the slightest quarrel or incident, as had happened on several occasions since 2014. Building societal resilience against extremism and fear requires a broad-based approach that relies on good governance, respect for the human rights of all and building bridges across communities.

• Ethnic and religious Identity

In most of the conversations I had, people often identified themselves as Muslim, Sinhala, or Tamil.  Otherwise, they identify themselves by religion such as Buddhist, Christian, Hindu or Muslim. It is apparent that there is a deeply rooted identity politics, closely linked with religion and ethnicity. From the point of freedom of religion or belief, identity politics risks
a) over emphasizing communal interest of a religion or ethnicity over individual rights or freedom;
b) giving priority or prominence to the given majority in a specific area, hence, marginalising the rights of minorities or those perceived not fitting into the recognised identities from the traditional mosaic of a society. 

Such identity politics will continue to undermine all the peacebuilding, coexistence and religious tolerance or harmony projects as each group of people become territorial in all spaces, whether politically, socially or economically.  I would like to refer to the SCP findings pointing to a considerable amount of the blame for ethno-religious tensions to politicians of all political parties, creating and instrumentalizing communal disharmony in an attempt to strengthen their power bases. 

While there is recognition that the Sri Lankan national identity represents some diversity, including religious and linguistic diversity; those who are members of a  religious community that does not  belong to the four main line religions in Sri Lanka appear not to enjoy the same rights and freedom as those officially recognized even though the law provides equal rights for all. Even among those who are recognised, the communities who are outnumbered by others in different areas claim that they are marginalised or  at risk of being ‘colonised’ by the majority. Similarly, the majority would argue that the ‘invasion’ of new religious communities in certain areas is not welcomed as they do not fit, or use the pretext that the new religious groups have undermined religious harmony in certain areas or hurt religious feelings of the majority people. 

Although the constitution frames freedom of religion or belief as a fundamental human right, the collective dimension of the right appears to be more emphasised in practice than the individual rights dimension, especially in the societal understanding of the right. This is likely the result of the strong links between ethnicity and religion, and a reliance on a ‘toleration’ model of freedom of religion or belief, whereby individuals are seen as part of a community on whom both the state and the individual rely to negotiate rights and duties. A toleration model however might not embrace horizontal equality of all citizens, which requires policies of inclusion; it may include privileges to the preferred or dominant community; and it may privilege collective rights over individual rights.

One of the challenges the country faces is perception of the lack of horizontal equality amongst religious communities, and a threat to their identity, which forms the basis for claiming for their rights. There is resentment amongst several groups that their identity and privileges based on that identity are under threat from the changing religious landscape in the country; while the majority community itself feels insecure in its position unless it asserted itself more stridently as the majority community.

• Lack of rule of law, accountability and impunity

Many complained about the role of the authorities in protecting communities against violence, citing the inability or the unwillingness of the authorities to protect communities against threats and acts of violence. Some expressed surprise and dismay that large mobs could openly and for several hours rampage through minority community neighbourhoods without hindrance or reaction from law enforcement authorities, or that these authorities fail to make adequate provision for protection even when some of the rioting continued on for several days.  In some cases, these attacks took place during curfew hours. These happened during the riots in Kandy district last year, and yet again in May this year in several locations in the Western and North Western provinces. 

Some also expressed concern about perceived bias in the way the police addressed complaints. This was particularly the case were the assailants were members of  the majority community. Many complained that either police failed to register and investigate complaints raised by them or that they would act in a punitive manner on complaints raised against them while failing to take similar measures when they were the target of attacks, or that generally the police were unsure on how to act in responding to infringements of the law by Buddhist monks. 

Some blamed politicians for influencing law enforcement citing examples where politicians were allegedly involved in pressuring the police to release persons arrested following violent attacks. Others blamed a more deep-seated culture of impunity which undermined the rule of law and human rights.

• Role of media and hate speech or campaigns

Many complained about the role of the media in promoting hateful narratives towards Muslims and inciting to hostility and discrimination against them. While some blamed journalistic sensationalism, others noted that the privatised and politicised electronic media play a large role in demonising individuals and groups. Some highlighted the negative role of the media in perpetrating the narrative that Muslim medical professionals were secretly carrying out large-scale sterilisation of Buddhist women. 

The role of social media in generating fear through fake news and incitement to violence was noted by many with serious concern. The government shut down some social media platforms during the riots in March 2018 and following Easter bombings earlier this year. While all hate speech should be rejected, the likelihood of such speech causing actual violence can depend greatly on the context and the overall climate. A combination of impunity, privilege, scapegoating and exclusion can form a tinderbox of hatred.

Although inciting to discrimination, hostility and violence is criminalised under the ICCPR Act, many argued that the Act was not applied in a manner that would protect minorities against incitement. Arrests under the act are non-bailable for a period of 14 days and signals the seriousness of inciting to violence. However, when the Act is invoked to protect religions or beliefs against criticism or perceived insult, rather than to protect individuals, communities may find themselves even more vulnerable to incitement to discrimination and violence.

While speech that reaches the high threshold of incitement to discrimination, hostility and violence should be criminalised, positive measures that seek to counter hate speech through positive and inclusive speech is equally important. Although there have been many good examples of inclusive speech following Easter bombings that appealed for calm and prevent a backlash against the Muslim community, some of the measures taken appear to have increased stigmatisation of the Muslim community.
A recurrent complaint was the role of the media and social media in fomenting hatred and disinformation, the failure of the police to protect minority communities and the inability to hold perpetrators to account. The recurrence of such episodic violence has fostered a climate of fear amongst Muslim groups and if unaddressed, it is likely to cause an exodus of Muslims from the country.

• Conclusion and recommendations for immediate consideration

The long-standing traditions of religious harmony and co-existence in Sri Lanka must be reinforced to address the challenges of the modern context of the country. This is characterised by growing politicisation of religion, polarisation of communities through segregated education based on ethno-religious identity,  opening up of under-regulated spaces for communication  through privatised electronic media and spread of social media, simmering resentment against perceived majoritarian privilege, growing frustration over capricious law enforcement, and the spread of religious extremism.

The legal protections for freedom of religion or belief, though with some exceptions, reflect the international standards on freedom of religion or belief. The key deficits relate to protections offered to the propagation of religion across faith boundaries and the deficits in the guarantee, in practice, against discrimination, especially for women. However, the legal protections are undermined by the capricious implementation of the rule of law, especially in regard to the prohibition of incitement to discrimination, hostility and violence, and against actual acts of violence against minority religious communities. 

Paradoxically, a provision that may have been designed to preserve good relations and harmony among religious communities, namely the criminalisation of giving offence to religion is not only problematic in terms of the right to freedom of expression, but may also hinder efforts to foster a climate of tolerance by ruling out the possibility to challenge extremist narratives based on religion or belief. 

I will formulate detailed recommendations in my final Report, but I wish to conclude my preliminary findings by recommending the following measures, some of which are particularly important to create an enabling environment to exercise fundamental freedoms in the lead up to elections:

• The State must prosecute those responsible for violence and incitement to violence, make efforts to dismantle the networks of hate, and facilitate access to justice to victims of hate crimes.

• The State should develop systems and mechanisms to monitor and respond to hate speech in conformity the with international human rights standards. The guidance provided by a number of tools developed by the UN system, notably the Rabat Plan of Action on responding to hate speech and the Fez Plan of Action on Responding to Incitement to Mass Atrocity Violence would be valuable for use in training law enforcement officials. These tools should also be disseminated to media persons, civil society actors, religious leaders and political leaders.

• As recommended in the above-mentioned tools, government leaders and religious leaders must speak out against hateful narratives and reject efforts to ostracise and stigmatise minority communities and persons in vulnerable situations.

• Urgent reforms to the education system must be initiated to foster inclusive identities. International obligations require Sri Lanka to fulfil the right to education in ways that prepare children for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, and religious groups and persons of indigenous origin.5

• The State should also consider incorporating the elements identified in the Action Plan included in Human Rights Council Resolution 16/18 of 2011, which inter alia calls for fostering inclusion of minority communities, conducting outreach programmes with them to build bridges, promoting inter-religious dialogue.

• State should utilise the Beirut Declaration and its 18 Commitments on Faith for Rights in its activities designed to promote inter-religious dialogue. Such dialogues must be inclusive with voluntary participation of all communities, bringing together not just religious leaders but religious actors that work to advance peacebuilding and human rights, including women and members of religious minorities and the non-religious.

• The social media platforms should invest more in the ability to monitor and respond to incitement to violence while protecting freedom of expression and access to information.

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