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Cracking
the whip in relation to the national human rights commission As long as the Constitutional Council (CC) remains inoperative, new appointments to the five-member NHRC will be stalled. The 17th Amendment specifies this as another of the Commissions to which the President can appoint members, only after recommendations made by the CC. The lapsing of the NHRC will result in grievous consequences that are substantially different to what transpired when the terms of office of the NPC and the PSC expired. This is for the simple reason that the NHRC, as envisaged in its enabling Act, No 21 of 1996, does not confine itself to one particular service like the police or the public service but instead engages in overall monitoring of the human rights situation in the country with a specific mandate assigned to it by Act, No 21. Its staff and offices operate in substantial numbers throughout the country. It is also engaged in numerous inquiries in terms of its mandate under Act, No 21 and the lapsing of the term of office of the key body will consign all such inquiries into a state of limbo. Then again, the lapsing of the NHRC is bound to severely affect donor perception of Sri Lanka's state of institutional functioning. In particular, this will be far more grave than the lapsing of the NPC and the PSC, given the direct relevance of the NHRC to protection of human rights and its role in monitoring the situation in the North-East.
However, the proviso to that section states that "during the period commencing on the appointed date and ending on the date when the Constitutional Council is established" Commission members will be appointed by the President on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition. This was, in fact, the procedure followed till the CC was established. Clearly here, the date contemplated was the date of the first establishing of the CC and cannot be taken to apply to the interim period between the term of office of the CC expiring and its successor coming into being. In terms of the 17th Amendment, recommendations need to be made by the CC even where acting appointments to the NHRC are concerned. No exceptions are stipulated. This is unlike in the case of the JSC where Article 41C of the 17th Amendment permits acting appointments to be made without the approval of the CC provided that they do not extend beyond fourteen days. In an overall sense therefore, without a specific amendment of the 17th Amendment itself, it is difficult to see as to how the pre-condition of CC recommendation of members for appointment could be got over in a situation where the CC continues to be non-existent. An imaginatively conceived extension of the office of the body may be resorted to but this may also have dangerous implications insofar as the validity of the future acts of such a body are concerned, if challenged. All this would have been unnecessary if the CC had been constituted, of course. Its non-existence, due to the perfidy of our parliamentarians has been commented upon ad nauseam in this column. Despite intermittently optimistic news reports, it appears that the intransigence, deliberate or otherwise, of the smaller parties, particularly the JVP, the JHU and the TNA in making their remaining nomination, (quite apart from quarrelling as to who should have the right to make such a nomination), will result in the indefinite delaying of the CC coming into being. Presidential appointment of the nominations so made cannot also be easily presumed. A speedy redressing of this situation belongs in the hands of those who prescribe standards of good governance in administration of this country. The whip ought to be cracked not only in regard to observing due appointment of its members but also in respect of remedying specific lacunae in Act, No 21 which has, so far, considerably impeded the functioning of the NHRC. Some of these specific defects are dealt with now. First and foremost, there is no doubt that members of the NHRC ought to be appointed on a full time basis. Past appointments have always been of part time members whose functioning has been negatively affected by their other commitments. It is important therefore that, at the minimum, the Act should stipulate that the majority of its members are appointed on a full time basis. If members come to the Commission from the public service, they should be assured release for the period of their service without their substantive employment being affected. Commensurately, serious thought ought to he given to the increase of the membership of this five-member body in order to cope with the extent of their mandate as well as to the prescribing of more rigorous standards than what is presently stipulated in order to preserve the reputation of the body itself. Crucially, its independence from the government ought to be greater assured. In that context, the obnoxiously worded Section 31 of the Act which allows the "Minister" to make regulations regarding the implementation of the Act, including regulations regarding the conducting of investigations by the NHRC needs to be taken out. It is amazing, in fact, as to how this provision came to be in the NHRC Act in the first instance. The body needs also to be given financial independence. Substantially, the powers of the NHRC leaves much to be desired, not the least of which is that it be authorised to investigate and inquire into human rights violations rather than the present narrowly defined fundamental rights violations. Its findings should be given some measure of binding force as opposed to merely placing a report before the President/Parliament. Experience has shown that many of its recommendations have been ignored by the relevant government authorities. It is also an interesting question as to whether it ought to be given some authority to investigate abuses of human rights by non-State actors in some defined contexts. Its current functioning has shown very explicit limitations of its mandate. The NHRC is not empowered to approach courts directly as is done in India. Relevant rules that would have permitted the NHRC to refer cases to the appropriate court have not been yet prescribed by the Supreme Court as statutorily mandated. These Rules need to be prescribed without further delay. Also, the body lacks the capacity to conduct detailed investigations of a criminal nature into complaints of torture. At the same time, it has yet to develop close links with the police and the Attorney General's (AG's) Department in the processes of torture investigations and prosecution as well as the NPC in respect of disciplinary action within the police. Highly problematically, it remains dependent on decisions taken by the police in regard to its powers of inspection, for example, in regard to what areas it may visit for purposes of monitoring in a police station. It is important that its officers be allowed to inspect not only the cells of police stations themselves but also the entire precincts of the station including the toilets and the kitchen. Presently, it appears that a wider power of inspection is not allowed without prior notice to the police/custodial authorities which defeats the very purpose of such monitoring. If serious measures are not taken to remedy these defects in the functioning of what was meant to be this country's premier human rights body as well as ensure the due constitutional appointment of its members, the NHRC will be relegated to yet another pitiable example of Sri Lanka's dysfunctional institutional process. And while it goes against the grain to urge the whip to be cracked by donors, nevertheless, in a situation where all else has failed, this seems to be the last recourse left to the desperate. If the donors themselves are serious about the pledges of aid given to this country, then basic conditions of healthy institutional functioning need to be adhered to. It is high time and more that this particular whip is cracked. |
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