PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND

Mandates of the Special Rapporteur on the situation of human rights defenders; the Working
Group on Arbitrary Detention; the Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of
peaceful assembly and of association and the Special Rapporteur on the promotion of truth,
justice, reparation and guarantees of non-recurrence

REFERENCE:
AL LKA 4/2021

17 August 2021

Excellency,

We have the honour to address you in our capacities as Special Rapporteur on

the situation of human rights defenders; Working Group on Arbitrary Detention;
Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression; Special Rapporteur on the rights to freedom of peaceful assembly and
of association and Special Rapporteur on the promotion of truth, justice, reparation
and guarantees of non-recurrence, pursuant to Human Rights Council resolutions
43/16, 42/22, 43/4, 41/12 and 45/10.

In this connection, we would like to bring to the attention of your Excellency’s

Government information we have received concerning the alleged arbitrary detention,
threats and intimidation against human rights defenders, journalists and trade union
leaders Mr. Sudesh Nandimal Silva, Mr. Senaka Perera, Mr. Tharindu Jayawardhana
and Mr. Joseph Stalin.

Mr. Sudesh Nandimal Silva is a human rights defender and the General
Secretary of the Committee for Protecting the Rights of Prisoners (CPRP), a non-
governmental organisation which advocates for the rights of prisoners in Sri Lanka.
The organisation, comprised of former prisoners, lawyers and human rights defenders,
provides legal aid to prisoners and their families, conducts campaigns for improved
prison conditions, and raises cases of alleged torture and deaths of detainees. In 1996,
Mr. Silva was involved in the formation of a trade union in the Sri Lanka Railways
company, where he is employed, and was the founding treasurer of what came to be
the Railways Workers, Labourers & Employees Collective, and later the General
Secretary. Both Mr. Silva and the CPRP have been engaged in public advocacy for
justice in the years since the killing of 27 prisoners by members of the defence forces
during a riot at Welikada Prison, Colombo on 9-10 November 2012, commonly
referred to as the Welikada Prison Riot. Mr. Silva is also a key eye-witness in the
case.

Mr. Senaka Perera is a human rights defender, lawyer and the President of
the CPRP. He is also Mr. Silva’s acting legal counsel.

Mr. Tharindu Jayawardhana is a human rights defender and a journalist

publishing articles primarily in Sinhalese and covering issues including corruption,
the environment and rights violations of ethnic and religious minorities such as
Muslims and Tamils. Mr. Jayawardhana published a number of investigative articles
on corruption and the environment, in particular whilst working for the Sinhalese
daily newspaper “Lankadeepa”. For his extensive use of the Right to Information law
since 2016 to report on stories in the public interest, Mr. Jayawardhana was the
recipient of a number of prizes. Mr. Jayawardhana founded the news website
MediaLK in 2019, which covers news stories relating to social justice, human rights
issues and the rights of minorities in particular, as well as reprisals against those
working against impunity.

Mr. Joseph Stalin is a human rights defender and trade union leader, who
campaigns for education rights in Sri Lanka. Mr. Stalin is a former teacher and is
currently the General Secretary of the Ceylon Teachers Union.

According to the information received:

Mr. Sudesh Nandimal Silva

On 30 April 2007, Mr. Silva was allegedly abducted and imprisoned in

Gampaha, along with other members from the Railways Workers, Labourers
& Employees Collective. The trade unionists were allegedly targeted in
response to their protest against the abduction of two other members of the
Collective in February earlier that year. Mr. Silva and the Collective members
were charged with attempting an uprising, revolt and insurrection against the
State and with collecting weapons from the Liberation Tigers of Tamil Eelam
(LTTE).

Mr. Silva allegedly was held in pre-trial detention in Welikada Prison until
13 September 2013, when, following trial, he and other members of the
Collective were found not guilty and released. During his time in Welikada
Prison, Mr. Silva allegedly witnessed the Welikada Prison Massacre in
2012 during which 27 prisoners were killed by Sri Lanka’s Special Task Force
and army commandos, making him a key eye witness in the case, currently
being prosecuted by the Attorney General.

On 5 April 2017, Mr. Silva filed a writ application at the High Court in
Colombo, requesting that the investigations and prosecutions in the case of the
Welikada Prison Massacre be expedited.

On 20 April 2017, during a mainstream Sinhala radio programme broadcast on

Neth FM, the presenter reportedly accused those involved in seeking justice
for the Welikada Prison Massacre of being Sinhala Tigers and of being
motivated by wanting to please the LTTE diaspora. The presenter also
reportedly encouraged listeners to consider those individuals unfavourably,
allegedly saying “let the people of the country determine the plight of the
people involved in seeking justice”. The following day, Mr. Silva filed a
complaint with the Criminal Investigation Department of the Police in
response to the threats he reportedly received following the radio programme.

On 3 May 2017, the same presenter from the radio programme phoned Mr.
Silva and reportedly asked him numerous questions in a harassing manner and
demanded comments from him. Following the call, Mr. Silva filed a complaint
with the Tissamaharama police station. On 4 May 2017, the radio programme
allegedly broadcast an edited version of the recorded phone call with
Mr. Silva, which he subsequently reported to the Police division for the
Protection and Assistance of the Victims and Witness.

On 11 July 2017, Mr. Silva and Mr. Perera both received phone calls from the
same number that was used by the radio presenter on 3 May 2017. The caller,

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not known to either of the human rights defenders, reportedly threatened them
against continuing to seek justice for the victims of the Welikada Prison
Massacre and levelled death threats against them if they continued to
participate in the legal case. Mr. Perera reported the phone call to the
Tissamaharama police station later that same day, and the following day
Mr. Silva did the same at Nittabuwa police station.

On 19 July 2017, Mr. Silva received a phone call from Mr. Nilantha Fernando,
the Chief Engineer of Operations for Sri Lanka Railways, where he is
employed. During the phone call, Mr. Fernando reportedly asked Mr. Silva if
he was trying to send President Gotabaya Rajapaksa, former Secretary of the
Ministry of Defence implicated in the Welikada Prison Riot, to prison. Mr.
Fernando reportedly said that people like Mr. Silva should not survive in the
world.

On the night of 4 September 2017, Mr. Silva was residing at his sister’s
apartment in Moratuwa, Colombo, when shots were reportedly fired at the
apartment. Police officers from Moratuwa police station took a statement from
Mr. Silva after the incident. In the following days, Mr. Perera reportedly wrote
to the Prime Minister, the State Minister of Defence, the Minister of Justice,
the Inspector General of Police, the Secretary of the Minister of Defence,
detailing the threatening phone calls he and Mr. Silva had received and also
the shots fired at Mr. Silva’s sister’s apartment whilst he was there. In the
letters, Mr. Perera reportedly requested that inquiries into the incidents be
initiated, which is still pending.

On 7 July 2021, two unknown men reportedly went to the apartment complex
where Mr. Silva lives, owned by Sri Lanka Railways. The men reportedly
inquired with his neighbours about his movements and whereabouts, and
allegedly made a comment that some harm may come to Mr. Silva in the near
future.

On the same day, some unknown individuals reportedly visited the home of
one of Mr. Silva’s relatives in Mount Lavinia, where he had lived 15 years
ago. The individuals reportedly inquired about Mr. Silva.

Following these two incidents, on 10 July 2021 Mr. Silva filed a complaint
with the Dematagoda police station in Colombo.

Mr. Tharindu Jayawardhana

On 29 June 2021, MediaLK published a report which referred to the Senior

Deputy Inspector General of Police for the Colombo Crime Division (CCD),
Mr. Deshabandu Tennakoon. The report mentioned that Mr. Tennakoon had
been one of a number of officers included in an investigation by the Special
Police Investigative Division, appointed to look into negligence on the part of
the police in relation to the Easter Sunday bombings in Colombo on 21 April
2019. Mr. Tennakoon was reportedly included as one of the officers against
whom the Special Police Investigative Division had recommended charges
should be brought in reference to their alleged negligence in preventing the
2019 attacks. The investigation noted that Mr. Tennakoon had allegedly failed
to fulfil his duties to prevent the attacks, and recommended a disciplinary

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inquiry be opened against him.

This information was included in the report by MediaLK, as well as the fact
that Mr. Tennakoon had reportedly been approved for a salary increase,
despite the recommendations of the Special Police Investigative Division, as
well as the recommendations by the Presidential Commission of Inquiry that
he should be subjected to disciplinary action. The report published by
MediaLK also referred to a comment reportedly made by the Minister
responsible for the police during a press conference at the Department on
Government Information on 18 June 2021, stating that the charge sheets
against Mr. Tennakoon and the other accused officers had been forwarded by
the Public Services Commission.

On 1 July 2021, MediaLK published an investigative report on its website

following the retirement of a senior police officer who had recently been
reportedly released on bail after 10 months in detention after the appeal court
criticised his arrest. The report highlighted that the investigations he had
carried out throughout his career, but did not mention his arrest or detention.
The senior police officer had been arrested by the Colombo Crime Division
(CCD) of the police in relation to various investigations he had undertaken.
The senior police officer’s arrest was overseen by Mr. Tennakoonand had
reportedly drawn much attention from civil society organisations and the
media, and the Human Rights Commission of Sri Lanka publicly expressed
concern and fear for his safety in response to the arrest.

Later that evening, at around 9 p.m., Mr. Jayawardhana shared the report on
Facebook from his personal account. On the evening of 2 July 2021,
Mr. Tennakoon commented on the post, alleging that Mr. Jayawardhana had
published false and fabricated information. In his comments, which he
continued to leave on the post for a number of days thereafter, Mr. Tennakoon
did not specify which elements of the report were factually incorrect.

Mr. Jayawardhana responded to the comments on Facebook, asking

Mr. Tennakoon to specify which details were incorrect, to which
Mr. Tennakoon responded, allegedly calling him a “liar” and that he had
written “lies”, both in this article and previously. Mr. Tennakoon also
reportedly threatened Mr. Jayawardhana, commenting that “nature will give
proper punishment” and that “nature will win”. In one comment, Mr.
Tennakoon also referred to “Prabhakaran and other criminals”, making
reference to the former leader of the Liberation Tigers of Tamil Eelam
(LTTE), Velupillai Prabhakaran, who was killed in 2009. In response, Mr.
Jayawardhana commented that if Mr. Tennakoon contacted MediaLK and
asked that factual corrections be made, the website would oblige, commenting
that “according to media ethics, we are bound to provide space for that
clarification”. Mr. Tennakoon reportedly responded that it was incorrect to say
that it was recommended that disciplinary actions be taken against him, and
threatened Mr. Jayawardhana: “People like this in society will be blessed by
nature”.

On 3 July 2021, following the alleged comments made on Facebook by

Mr. Tennakoon, Mr. Jayawardhana wrote a letter to the Inspector General of
Police (IGP), allegedly informing of the comments and requesting that his

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safety and security and that of his family be guaranteed. The letter also
contained requests that an inquiry be conducted into the comments made by
Mr. Tennakoon, and that he be allowed to freely carry out his professional
work as a journalist. The previous day, the Media Organizations Collective, a
coalition of media freedom organizations, had also written to the IGP
demanding that Mr. Jayawardhana be protected and similarly called for a
formal inquiry. At the time of writing this communication, no response was
received from the IGP to either of the letters.

On 4 July 2021, the Media Division of the opposition party Samagi

Janabalavegaya (SJB) and the Deputy Leader of the United National Party
(UNP) allegedly issued statements expressing concern in response to the
threatening comments made by Mr. Tennakoon against Mr. Jayawardhana.

Mr. Joseph Stalin

On 8 July 2021, the Ceylon Teachers Union along with other teachers’ unions
organised a demonstration outside of the Ministry of Education in
Battaramulla to demand the withdrawal of the Kotelawala Defense University
(KDU) Bill, due to be discussed in parliament that day. The Bill has been
criticised as an attempt by the Government to bring the national higher
education system under military control and hinder access to free education.

During the demonstration, which reportedly adhered to the relevant

COVID-19 safety measures, Mr. Stalin and 30 other demonstrators were
allegedly arrested by police officers, allegedly for violating restrictions on
public gatherings during the pandemic. The police officers reportedly used
force to disperse the demonstration and arrest the participants. Later that day,
following their arrest, Mr. Stalin and the other demonstrators appeared before
the Additional Magistrate Court in Colombo. The Magistrate granted bail to
Mr. Stalin and the group of detained demonstrators, and allegedly rejected a
specific request by the police that the demonstrators be subjected to mandatory
quarantine, on the basis that the Court was not mandated to make such an
order.

Shortly after they appeared before the Magistrate and despite the rejection of
the request for mandatory quarantine, Mr. Stalin and the other demonstrators
were reportedly forced onto a bus by police and taken to the Sri Lanka Air
Force Quarantine Centre in the Northern Province. In the centre, Mr. Stalin
and the 30 other demonstrators were reportedly deprived of adequate facilities,
including access to clean drinking water, and denied a change of clothes.
Whilst detained in the quarantine centre for 8 days, Mr. Stalin and the group of
demonstrators were allegedly not tested for COVID-19, nor were they visited
by a Public Health Inspector (PHI).

Following the debate about the quarantine of the demonstrators in the

parliament, the Minister of Public Security responded to criticism from the
opposition leader, claiming that the decision to quarantine the demonstrators
was taken by PHIs. However, according to media reports quoting the PHI
Union Chairman, Mr. Uphul Rohana, no such consultation with PHI had
reportedly taken place. Members of the Sri Lankan Human Rights
Commission reportedly attempted to visit Mr. Stalin and the group of

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 demonstrators in the quarantine centre, but were denied access.

On 16 July 2021, Mr. Stalin and the other demonstrators were released from
mandatory quarantine.

Without wishing to prejudge the accuracy of the information received, we are

seriously concerned by the alleged intimidation, threats and arbitrary detention of
human rights defenders Mr. Silva, Mr. Perera, Mr. Jayawardhana and Mr. Stalin,
which appear to be in direct response to their human rights, journalistic and trade
union activities. The reported threats against Mr. Silva and Mr. Perera in response to
their advocacy against impunity and the right to justice for the victims and families of
the Welikada Prison Massacre are cause for serious concern, as are the threats they
have purportedly been subjected to, particularly in relation to Mr. Silva’s role as an
eye witness in the case. This concern is compounded by the perceived inaction by
your Excellency’s Government to respond efficiently and effectively to these threats
to mitigate the risks faced by Mr. Silva and Mr. Perera. This inaction not only has a
potentially harmful impact on their physical and psychological integrity, but also
extends to a potentially detrimental impact on the creation of an environment in which
members of society are encouraged to and feel safe to denounce impunity and seek
justice and redress, without fear of reprisal.

We would like to further convey our concern for the reported threats against
Mr. Jayawardhana by a public official on social media, in response to his legitimate
journalistic activities, reporting on matters in the public interest and exercising his
right to freedom of expression and freedom of association. It would also appear that
Mr. Jayawardhana’s efforts to correct any factual error in his reporting were in vain,
and were met with further threats in response. We are equally concerned that
Mr. Jayawardhana’s requests to the relevant authorities for his safety to be guaranteed
in light of the threats against him appear to have gone unanswered and
unacknowledged.

We also wish to express our utmost concern regarding the information which
would indicate that Mr. Stalin and other demonstrators were allegedly arbitrarily
arrested and detained in quarantine, without a court order, in direct response to
exercising their right to freedom of assembly. Further concerning, is that their arrest
and detention appears to have taken place under the pretext of alleged
COVID-19 measures, indicating an alleged misuse of such public health measures to
prevent the legitimate exercise of the rights to freedom of opinion, expression and
assembly.

We are issuing this appeal in order to safeguard the rights of the above-
mentioned individuals from irreparable harm and without prejudicing any eventual
legal determination.

In connection with the above alleged facts and concerns, please refer to the
Annex on Reference to international human rights law attached to this letter which
cites international human rights instruments and standards relevant to these
allegations.

As it is our responsibility, under the mandates provided to us by the Human

Rights Council, to seek to clarify all cases brought to our attention, we would be
grateful for your observations on the following matters:

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 1. Please provide any additional information and/or comment(s) you may
have on the above-mentioned allegations.

2. Please provide information as to the actions taken in response to the

reported threats received by Mr. Silva and Mr. Perera to ensure their
physical and psychological integrity, and in response to the numerous
complaints filed by the human rights defenders in relation to these
threats. If no actions have been taken, please provide information as to
the reasoning.

3. Please provide information as to the reported threats against

Mr. Jayawardhana made by the Senior Deputy Inspector General of
Police, Mr. Tennakoon on social media, and any actions taken in
response to reports of such threats, including disciplinary action against
the relevant official or measures taken to ensure Mr. Jayawardhana’s
physical and psychological integrity both online and offline.

4. Please provide information on how your Excellency’s Government

protects witnesses in ongoing trials, and whether their witness
protection is offered to individuals who believe they are at risk due to
their role as a witness in high profile cases.

5. Please provide information as to the factual and legal basis for the
alleged arbitrary arrest and detention of Mr. Stalin and other
participants of the demonstration. Please provide information on which
grounds they were charged and how the relevant provisions are in
conformity with Sri Lanka’s obligation under international human
rights law with regards to the right to freedom of assembly.
Furthermore, please provide the legal and factual basis for the
detention of Mr. Stalin and the other participants of the
demonstrations in a quarantine centre.

We would appreciate receiving a response within 60 days. Passed this delay,

this communication and any response received from your Excellency’s Government
will be made public via the communications reporting website. They will also
subsequently be made available in the usual report to be presented to the Human
Rights Council.

While awaiting a reply, we urge that all necessary interim measures be taken
to halt the alleged violations and prevent their re-occurrence and in the event that the
investigations support or suggest the allegations to be correct, to ensure the
accountability of any person(s) responsible for the alleged violations.

We would like to inform your Excellency’s Government that after having

transmitted an allegation letter to the Government, the Working Group on Arbitrary
Detention may transmit the case through its regular procedure in order to render an
opinion on whether the deprivation of liberty was arbitrary or not. Such letters in no
way prejudge any opinion the Working Group may render. The Government is
required to respond separately to the allegation letter and the regular procedure.

Please accept, Excellency, the assurances of our highest consideration.

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 Mary Lawlor
Special Rapporteur on the situation of human rights defenders

Miriam Estrada-Castillo
Vice-Chair of the Working Group on Arbitrary Detention

Irene Khan
Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression

Clement Nyaletsossi Voule

Special Rapporteur on the rights to freedom of peaceful assembly and of association

Fabian Salvioli
Special Rapporteur on the promotion of truth, justice, reparation and guarantees of
non-recurrence

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 Annex
Reference to international human rights law

In connection with the above alleged facts and concerns, we would like to
draw the attention of your Excellency’s Government to the relevant international
norms and standards that are applicable to the issues brought forth by the situation
described above. In particular, we wish to refer to articles 6, 9, 19 and 21 of the
International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka
acceded in 1980, which guarantee the right to life, liberty and security of person,
freedom of opinion and expression, and the right to freedom of peaceful assembly and
association. These rights are also provided for by articles 3, 19 and 20 of the
Universal Declaration on Human Rights (UDHR).

We would like to recall that any restrictions on freedom of expression must be

strictly limited and meet the high threshold set out in article 19(3) of the ICCPR, be
determined by law and be necessary and proportionate to the aim pursued. In its
General Comment No. 34 (CCPR/C/GC/34), the Human Rights Committee stated that
States parties to the ICCPR are required to guarantee the right to freedom of
expression, including inter alia ‘political discourse, commentary on one’s own and on
public affairs, canvassing, discussion of human rights, journalism’, subject only to
admissible restrictions referred to above as well as the prohibition of propaganda for
hatred and incitement to hatred, violence and discrimination. Further, the Human
Rights Committee made clear that “It is not compatible with paragraph 3, for instance,
to invoke such laws to suppress or withhold from the public information of legitimate
public interest that does not harm national security or to prosecute journalists,
researchers, environmental activists, human rights defenders, or others, for having
disseminated such information”.

With regard to the alleged arbitrary arrest and detention in quarantine of

Mr. Stalin and other demonstrators, we wish to refer to Article 21 of the ICCPR,
which stipulates that “The right of peaceful assembly shall be recognized. No
restrictions may be placed on the exercise of this right other than those imposed in
conformity with the law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and freedoms of
others.” The ‘provided by law’ requirement means that any restriction ‘must be made
accessible to the public’ and ‘formulated with sufficient precision to enable an
individual to regulate his or her conduct accordingly’ (CCPR/C/GC/34). We also wish
to recall that any deprivation of liberty resulting from the legitimate exercise of the
rights guaranteed by the ICCPR is arbitrary (see also CCPR/C/GC/35, para. 17).

The Special Rapporteur on the right to peaceful assembly and association has
cautioned in several occasions against the restrictions on the right to peaceful
assembly during the COVID-19 pandemic and the corresponding State measures
worldwide. We would like to remind your Excellency’s Government to respond to the
current crisis in compliance with its human rights obligations and to act according to
the Special Rapporteur’s ten key principles on guaranteeing the rights to freedom of
peaceful assembly and association during public health emergencies.

In addition, we would like to refer to the Article 12, paragraphs 2 and 3 of the
UN Declaration on Human Rights Defenders which provides that the State shall take
all necessary measures to ensure the protection of everyone against any violence,

9
threats, retaliation, de facto or de jure adverse discrimination, pressure or any other
arbitrary action as a consequence of his or her legitimate exercise of the rights
referred to in the Declaration. We would also like to bring to refer your Excellency’s
Government to articles 1, 2, 5 (a) and (b), 6 (c) and 9.

Regarding the Welikada Prison Massacre case, and the intimidation, threats
and attacks suffered by Mr. Silva and Mr. Perera in connection to their advocacy for
justice for the victims of the massacre, we would like to recall that article 2 of the
ICCPR sets out the duty of States to ensure that any person whose rights were violated
has an effective remedy, and that the competent authorities enforce such remedies
when granted. In this regard, we would like to refer to the obligation to investigate
and punish human rights violations and to combat impunity for such crimes, pursuant
to Article 2 of ICCPR. As established by the Human Rights Committee in its General
Comment No. 31, States have an obligation to investigate and punish serious human
rights violations, such as torture, extrajudicial killings and enforced disappearances.
Failure to investigate and prosecute such violations is in itself a breach of the norms
of human rights treaties (paragraph 18). Impunity for such violations can be an
important element contributing to the recurrence of violations. We would further like
to recall the Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, which stipulates that in cases of gross
violations of international human rights law and serious violations of international
humanitarian law constituting crimes under international law, States have the duty to
investigate, prosecute, and punish those responsible (principle 4). They further call on
States to take measures to minimize the inconvenience to victims and their
representatives, protect against unlawful interference with their privacy as appropriate
and ensure their safety from intimidation and retaliation, as well as that of their
families and witnesses, before, during and after judicial, administrative, or other
proceedings that affect the interests of victims (principle 12.b)

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