Telling truths and political brinkmanship

By Kishali Pinto Jayawardena

So we are told that national institutions supposed to ensure accountability for human rights violations are working well, (even if not perfectly well for which perfunctory condescension we must, I suppose, be thankful), and that all which is required is a little more resources directed that way. This is, after all, the plaintive mantra emanating from entities such as Sri Lanka's Permanent Mission in Geneva and the country's Secretariat for Coordinating the 'War' Process, which re-naming (as someone pointed out to me the other day in a burst of hilarity that is quite at odds with the dreary tone of present-day life), translates to the beautifully appropriate acronym of SCOWP.

Downgrading of the HRC

The problem with all these utterly unconvincing defences is that they ring false even in the ears of those who cannot necessarily be termed as rabid human rights defenders. For example, the non-implementation of the 17th Amendment and the consequent utter inefficacy of commissions appointed in defiance of its conditions, particularly the Human Rights Commission of Sri Lanka, have been in the pages of the newspapers for some months and have been highlighted by editorial writers across the board, not all of them stubborn liberals as it were.

The recent deterioration of Sri Lanka's HRC has occurred on many fronts. Internationally, it has been subjected to stringent criticism, the latest development in this regard being the recent decision by the sub-committee on accreditation of the International Coordinating Committee (ICC) of National Human Rights Institutions, UN Office of the High Commissioner for Human Rights, to downgrade the status of Sri Lanka's Human Rights Commission from category "A" to category "B".

This process culminating in the adverse decision of the ICC Sub-Committee on Accreditation and endorsed by the ICC members, commenced in March 2007. Pursuant to section 3(g) of the ICC Rules, the ICC proceeded to consider the following two questions relating to the accreditation status of Sri Lanka's HRC, namely first, 'it is not clear whether the appointment of Commissioners has been in compliance with the Law of the Commission and therefore in compliance with the Paris Principles; and secondly "it is not clear whether the actual practice of the Commission remains balanced, objective and non-political, particularly with regard to the discontinuation of follow-up 2000 cases of disappearances in July 2006."

The review process entertained submissions relating to these two questions, in the course of which more than thirty eight civil society organizations from Colombo based non governmental organsations to rural based community networks working in the field for over thirty years or so, sent in critical reports pointing to the fact that the HRC has failed to live up to its mandate and has been unwilling and unable to respond to the severe human rights crisis facing the country. Further, it was requested that the ICC facilitate the transformation of the HRC as a matter of urgency, so that it may once again be a credible and effective actor on behalf of the victims of human rights abuse in Sri Lanka.

Thereafter, the IC sub-committee called for representations from the HRC itself in response to the allegations levelled against it. It was consequent to this process that the decision to downgrade its status was arrived at.

The precise reasoning of the Sub-Committee in arriving at this decision is a good illustration of the essential problems affecting the HRC and therefore will be noted as follows. The Sub-Committee observed that firstly, the Paris Principles provide for the appointment of the governing body and other guarantees of independence. The 2006 appointment of the Governing Body was done without the recommendation of the Constitutional Council prescribed in the Constitution. Secondly it is noted that the Commission did not take measures to ensure its independent character and political objectivity, as required by the Paris Principles. Thirdly, it is noted that the Commission has failed to issue annual reports on human rights as required by the Paris Principles.

In addition, the Sub-Committee noted that the state of emergency still prevails in Sri Lanka and thus refers to the General Observation on "NHRIs (National Human Rights Institutions) during situations of a coup d'état or a state of emergency." In this context, it was observed as a principle, that the Sub-Committee expects that, in the situation of a coup d'état or a state of emergency, an NHRI will conduct itself with a heightened level of vigilance and independence in the exercise of its mandate.
The Sub-Committee also emphasized the importance for NHRIs to maintain consistent relationships with civil society. It was pointed out that "the appointment process has caused civil society in the country to question the constitutionality of it, which has affected the credibility of the Commission."

HRC and the public

At this point, it must be stated that this last concern of the ICC has a particular factual context to it, reflecting extremely adversely on Sri Lanka's HRC. Spurred perhaps by annoyance at the unyielding critique of activists that the current HRC is acting unconstitutionally, the HRC has refused to share information with non governmental organizations, stating albeit astonishingly ill advisedly in writing that it will not release information collected by it, to the public. For example, one letter dated 10.10.2007, signed by the Secretary to the Commission and sent in response to such a request by a non-governmental organization, states pompously 'that the information and data collected by the Commission is for the purpose of meeting the requirements of the Commission and that therefore no information could be released to any other agency." Verbally, officers of the Commission have stated that they would release information only to the Government or to the UN agencies. It is an interesting question meanwhile as to whether, in the wake of the downgrading by the ICC, the UN too would be blacklisted by the HRC.

The contradiction comes however in the fact that while the HRC initiates such clearly antagonistic policies towards non governmental organizations domestically, it professes quite the reverse internationally. Thus, in its Report submitted to the 12th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions (APF sessions) in Sydney, September 2007, the HRC claimed, somewhat amusingly, that it 'closely collaborates' with interalia, 'non governmental organizations by providing information reported to the Commission.' This is, as clearly demonstrated above, a palpable inaccuracy. It is these evident contradictions and inconsistencies that go to the systematic deterioration of national institutions and deprive them of credibility and integrity. The damage caused to the institution itself goes beyond one individual; instead, it takes years to rebuild public confidence in these institutions. We saw this some years back in relation to the judiciary, the effect of which still remains to be remedied despite occasional 'good' judgments that are applauded by all and sundry.

While this situation continues, the government just cannot credibly request that the Human Rights Commission of Sri Lanka, for one, be given resources and support. While it is acknowledged that there is an ongoing war in the country in a context where the protagonist is both ruthless and uncaring of international humanitarian standards and the Geneva Conventions as it may be, this does not suffice as an excuse to weaken national institutions so as to render them subservient to the political executive.

Revitalizing the 17th Amendment

There is no doubt that responsibility for revitalizing the 17th Amendment to the Constitutions and reappointing members of the constitutional commissions after obtaining the approval of the Constitutional Council is the responsibility of the UNP as well. The newspapers recently published statements by government spokesmen stating that it is the UNP which is responsible for holding up the interim report of the Select Committee of Parliament on the 17th Amendment, which was a relatively good report. If this is not true, then it is the duty of the UNP as a responsible Opposition to refute that allegation. Instead as far as I am aware, there is no refutation and the Report lies abandoned.

Assuredly the travails of the budget debate no longer hold any interest for the majority of us. Whoever wins and whoever loses, this crazy game of political brinkmanship will go on with the one sure consequence being that more and more corruption will be evidenced, more and more human rights abuses will take place and the ordinary people will forego more and more essential items for daily existence. Neither side of the political divide, it appears, has any respect for governance and the protection of human rights, whatever loud noises the Opposition may make at this current point of time.