FOCUS ON RIGHTS -Pressing for Improved Democracy in Sri Lanka
— By Kishali Pinto Jayawardena
Perhaps the greatest tragedy that has befallen Sri Lanka in the post-war phase is the tying up of the question of justice solely to the alleged abuses inflicted on civilians during the last stages of the conflict in the North in May 2009 at the hands of the then administration and the Liberation Tigers of Tamil Eelam (LTTE).
Convenient trappings of democracy
This linkage has been convenient both for the government and for the extremist segments of the diaspora which are virulently Sinhala ultra-nationalist or Tamil ultra-nationalist as the case may be. On the part of the government and the Sinhalese ultra-nationalists, (the latter managing with commendable flourish to be most ardent and shrilly jealous ‘patriots’ while living in the luxury of foreign climes), this has been immensely profitable.
Their combined efforts have been able to whip up nationalistic sentiments domestically to the extent that the level of popularity of the Rajapakse administration ebbs and flows with the decease or increase in what is popularly termed as international Western pressure. For those unabashedly wanting a majoritarian and rights unfriendly regime, there are no alternatives to this administration. That much is now clear.
To be sure, they would like all the farcical trappings of democracy such as an ostensibly functioning Human Rights Commission despite the fact that this body has virtually no authority in practice to enforce its orders even against a humble local government official let alone individuals in powerful positions. Where the law and the Constitution itself elevate the Executive President to be above its reach, what can we expect from humbler officials? The history of the Human Rights Commission in this country, even when it was properly functioning under the 17th Amendment to the Constitution, teaches us the good lesson that the energies and resources expended on it has had little results.
Irrefutably disastrous record of the Human Rights Commission
At its very best and when unwillingly prodded to some action in particularly egregious cases of human rights violations, its orders have been routinely ignored by officials and government bodies. At the very worst and when it was headed by unabashedly pro-government sycophants post 2005, it degenerated into the depths of absurdity. In one instance, as one would recall, the Commissioners discontinued inquiries into enforced disappearances during the 1980’s and 1990’s (of which the majority were persons of Sinhalese ethnicity by the way) on the shameful basis that if the inquiries were to be continued, the government would be obliged to pay compensation to the family members of the victims. This promoted an embarrassed Minister of Human Rights to dissociate himself from the impugned decision, compelling the Commissioners to withdraw from their earlier position. What has since then happened to these inquiries is however, anybody’s guess.
In another instance, the Commissioners (despite being retired judges and lawyers) showed their acute ignorance of the very law under which they were functioning when in an order dated 31/01/2008, it declared that no violation of rights had occurred as a result of police officers insisting that they should be within earshot of two lawyers who had attempted to confer privately with their clients at the Boosa detention camp. The relevant order stated inter alia that no violation of rights had been occasioned by this denial of the right to confidential legal representation. It was observed in that order most un-judiciously that “still some international laws and standards have not been incorporated into our law…..further it should be noted that the Sri Lankan government is not bound to follow all international laws and standards.”
This reasoning was directly contrary to Section 10 of the Human Rights Commission Act, No 21 of 1996 which states that one of the functions of the Commission was to make recommendations to the government in regard to the taking of measures to ensure that national laws and administrative practices are in accordance with international human rights norms and standards. So here were the Commissioners most ironically advising the exact contrary; namely that the right to confidential legal representation should not be allowed, even though such a right is part of the international treaties that Sri Lankahas signed, including the International Covenant on Civil and Political Rights.
Would this trend be reversed in the future?
And should we have any confidence that this trend would be reversed in the future with the appointment of new Commissioners recently, beautifully and amusingly timed as this was, to coincide with the focus on Sri Lanka in the deliberations of the United Nations Human Rights Council? The answer must unfortunately but quite unequivocally be given in the negative.
There are ample reasons for such pessimism and not all of them have to do with the individual or collective persona of the appointees. The fact of the matter is that, the Human Rights Commission of Sri Lanka is, anyway, that most toothless of tigers as the irresistible cliché goes.
Quite apart from its lack of enforcement powers, its investigative powers in regard to cases of human rights abuses have been chronically weak. One significant aspect of the Commission’s powers are the monitoring of the welfare of detained persons in terms of Section 11(d) combined with the duty on the part of arresting officers to inform the Commission of all arrest made under emergency law in terms of Section 28 (2) of the Act. Yet these provisions have had absolutely no impact at any point of time with police and army personnel commonly ignoring a mandatory injunction on them in terms of reporting of arrests. There is a penal punishment imposed on those officers who disobey this condition.
Yet, not a single officer has been warned, disciplined or taken to court for failure to adhere thereof. This, by itself, is undeniable authority for the pathetic ineffectiveness of this Commission. This past history of the Commission is based on well documented and analytical surveying of its record and is not merely rhetorical criticism however unpleasant these home truths may be to those who prefer to believe otherwise.
But these are not considerations that overly disturb those among us who are delighted that a Commission has now come into place. To expect the contrary would indeed be naïve. After all, the consignment of a once feted Army Commander who led the war effort to a prison cell like another common criminal following the clash of injured egos between himself and the Presidential family ultimately raised only muted murmurs despite a monumental subversion of the law. This is evidence above anything else that the value of conscience in our hearts and minds, (irrespective of who the person may be that is caught in the toils of injustice), has died.
Lessons taught by history
And to return to the main thrust of this week’s column, the posturings of the majoritarian ultr-nationalists among us are only replicated by those segments of the diaspora who remain stubbornly pro-LTTE. For them too, Sri Lanka’s justice question is limited to the minority Tamil issue. This is a welcome dynamic as it sustains their argument of the irrefutably racist Sinhala State. Their argument is that abuses have been committed by successive governments against Tamils purely and only due to their ethnicity. We are therefore invited to accept their most absurd logic that the Sri Lankan State has been as pure as the driven snow in its actions against other minorities or against the majority Sinhalese. History, of course, teaches us otherwise in clear terms.
Yet it is on this basis that frenzied and near hysterical stampeding by defenders of one or the other of these two deadly warring groups takes place at each session of the United Nations Human Rights Council in Geneva. The value of civilized dissent is over-trodden in this stampede. On each side, there is little sincerity in actually meeting the concerns that face the people of Sri Lanka in restoring democracy to our land.
Demand for democracy to rest on justice imperatives
The truth therefore lies in neither of these two convenient ultra-nationalist corners. Rather, it is in the acknowledgement that the defects in Sri Lanka’s justice systems are not limited in their reach to the minorities or to a particular administration. Instead, these defects are historic, endemic and systemic and have resulted in grievous wrongs to both the majority and the minorities.
To correct these, we need sober and reasoned thinking and not cosmetic bandages by way of Human Rights Commissions or for that matter, Lessons Learnt Commissions. All our lessons have anyway now been learned to their most bitter dregs. What we need are corrections in our basic constitutional and justice systems. This includes (at the minimum) the abolition of the privileges given by law to the holder of the office of the Executive Presidency and the securing of firm independence of our constitutional institutions, most importantly the judiciary.
Public demand for improved democracy in Sri Lanka must rest on these imperatives and assuredly none other.
(This article was originally printed in the Sunday Times, Sri Lanka and has been republished here with the authors permission.)