Focus on Rights

A long way more to go
On Friday, 6 November, the main expert body mandated by the United Nations with the task of monitoring states under the International Covenant on Civil and Political Rights (ICCPR), released unprecedentedly severe Concluding Observations with regard to Sri Lanka's unfulfilled responsibilities in terms of the ICCPR.

The Observations imposed an immediate obligation on the Sri Lankan State to take serious note of particular concerns raised by the Committee and to provide information within one year on measures taken to address those concerns.

The Concluding Observations were adopted at the seventy ninth session of the United Nations Geneva based Human Rights Committee on 6 November, in response to Sri Lanka's combined fourth and fifth Periodic Reports under the ICCPR.

Particularly interestingly, as far as the current popularly termed 'constitutional crisis' is concerned, the Committee re-iterated that Sri Lanka strengthen the independence of the judiciary by providing for judicial, rather than parliamentary, supervision and discipline of judicial conduct. These concerns were expressed in reference to the procedure for the removal of judges of the Supreme Court and the Courts of Appeal set out in article 107 of the Constitution, read together with the Standing Orders of Parliament.

Sri Lanka was however directed by the Committee (under rule 70, paragraph 5 of the Committee's rules of procedure) to provide information, within one year, with regard to four issues.

The strongest censure came in response to what was referred to as " persistent reports" of torture and cruel, inhuman or degrading treatment or punishment of detainees by law enforcement officials and members of the armed forces.

In this context, Sri Lanka's State Report, which had stated mistakenly that ten persons had been convicted under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act, No 22 of 1994, was corrected by the Government delegation during the final reading of the Report. This left us with the highly problematic conclusion that not a single conviction has yet resulted under this Act for the past nine years.

Responding to this and connected concerns, the Committee regretted that the majority of prosecutions initiated against police officers or members of the armed forces on charges of abduction and unlawful confinement, as well as on charges of torture, have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses, despite a number of acknowledged instances of abduction and/or unlawful confinement and/or torture.

The Committee noted with concern, reports that victims of human rights violations feel intimidated from bringing complaints or have been subjected to intimidation and/or threats, thereby discouraging them from pursuing appropriate avenues to obtain an effective remedy. Practically, the State was directed to undertake prompt and effective investigation and prosecution of crimes committed by state security forces, specially torture, abduction and illegal confinement.

In addition, the Committee stated that the National Police Commission complaints procedure should be implemented as soon as possible. This refers to the duty imposed on the National Police Commission under Article 155G (2) of the Constitution, (by virtue of the 17th Amendment), to establish procedures to entertain and investigate public complaints or complaints of aggrieved persons against an individual police officer or the police service.

Importantly, it was also recommended that all cases of suspected intimidation of witnesses should be inquired into and a witness protection program established.
In the second instance, the large number of enforced or involuntary disappearances of persons during the time of the armed conflict, and particularly about Sri Lanka's inability to identify, or inaction in identifying those responsible and to bring them to justice, was put in issue. This situation, (taken together with the reluctance of victims to file or pursue complaints), was opined by the Committee, to create a culture of impunity.

Sri Lanka was accordingly urged to implement fully the right to life and physical integrity of all persons and give effect to recommendations made by the UN Working Group on Enforced or Involuntary Disappearances and the Presidential Commissions for Investigation into Enforced or Involuntary Disappearances. It was recommended that the capacity of the National Human Rights Commission to investigate and prosecute alleged human rights violations, in response to both these concerns, be strengthened.

Thirdly, Article 15 of Sri Lanka's Constitution which permitted restrictions to be imposed on fundamental rights during emergency was critiqued, particularly, the fact that the freedom from retroactive punishment could be restricted by emergency regulations, (thus departing from the absolute prohibition on such punishment under the Covenant).

Finally, Sri Lanka was directed to report back within one year on the harassment of media personnel and journalists. While pointing to the majority of allegations of violations of freedom of expression being ignored or rejected by the competent authorities, the Committee directed that appropriate steps be taken to prevent harassment of media personnel, ensure that such cases are investigated promptly, thoroughly and impartially and prosecute those found responsible.

These issues were only, (as it were), the tip of the iceberg, as far as international scrutiny of the current state of human rights in Sri Lanka, is concerned. Overall, the Committee remained concerned that Sri Lanka's Constitution does not contain all the Covenant rights, (including the right to life, despite judicial interpretation that acknowledged it as implicit in the Constitution in particular respects) and that restrictions that went beyond the Covenant boundaries, were permitted. Additionally, the fact that existing laws remained valid despite their unconstitutionality and the constitutional stipulation of the one month time limit for fundamental rights applications, was also remarked upon adversely.

Given the severity of these Concluding Observations, policy makers in this country will not have the luxury of another four years (or more, if the habitual delay in the presentation of State Reports is anything to go by) in order to respond to the concerns raised by the Committee, this time around. The element of immediacy is welcomed. What remains untested, as yet, is the resolve of the State to these concerns, pre-occupied as we are with puerile political battles that continue to crucify us as a nation that respects the Rule of Law.

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