Focus on Rights

Discussing government hypocrisy, a new bill of rights and the United Nations Human Rights Council
Ironically, while existing constitutional provisions in terms of the 17th Amendment to the Constitution are reduced to a mockery due to their non-implementation, Sri Lanka's Ministry of Constitutional Affairs now proceeds to hold seminar discussions on a 'new Bill of Rights for Sri Lanka."
This naturally leads to intense bewilderment. The Asian Human Rights Commission (AHRC) expressed its concerns in a statement released recently. Other human rights networks, including FORUM ASIA questioned this week generally as to whether Sri Lanka has not fallen short of its pledges to safeguard human rights.

At a time when the country has put forward its candidature to the newly established United Nations Human Rights Council, such questions are crucial. Particularly so when the government has declared that it will not abide by the views of a primary organ in monitoring compliance of the International Covenant on Civil and Political Rights, (ICCPR), namely the United Nations Human Rights Committee.

Up to now, the Committee has forwarded five Communication of Views to the Sri Lankan State. In all, it has issued comprehensive recommendations towards remedying the plight of those who invoked its individual petition procedure. However, none have been implemented. In the Fernando Communication, a lay litigant's sentencing to one years' rigorous imprisonment for talking loudly in the Supreme Court and filing repetitious motions was in issue. This was decided by the Committee to amount to an arbitrary deprivation of liberty. But the government has gone so far as to directly inform the UN-HRC of its inability to comply.

In fact, (as I found when I was requested as lead counsel in that Communication following a formal request by the Committee per regular procedure, to reply to this government rejoinder some months back), the government has excused itself on an amazingly novel basis. This was that, "at the time that Sri Lanka decided to become a Party to the Optional Protocol, it was not envisaged that the competence of the Human Rights Committee would extend to a consideration, review or comment of any judgment given by a competent Court in Sri Lanka."

But this is infinitely puzzling. In all cases, domestic remedies must be exhausted before the individual petition procedure is invoked except rarely, as for example, when domestic remedies are rendered inapplicable because of extreme delay. This means that a decision of Sri Lanka's highest court is always in issue. The government's argument therefore stands true of each and every petition that is filed before the Committee, thus rendering the Sri Lanka's submission to the procedure, of no value. Needless to say, drafting a critical response to such an unformed view of international obligations was a load of fun.

Yet, in the context of such spurious defiance of UN procedures including also repeated non-implementation of recommendations of the UN-HRC as well as the Committee Against Torture in the periodic reporting process, should we be seeking candidature in the Council?

Whether the government would succeed in its bid would, of course, all depend on political negotiations in the forthcoming electoral process. However, the success of the Council, (successor to the discredited UN Commission on Human Rights, the membership of which included some of the world's worst rights violators), depends without a doubt, on its members being limited to those observing respect for international human rights standards.

Perhaps this newly spurred interest in constitutional reforms on the part of the Constitutional Affairs Ministry is also another aspect of this lobbying process. Indeed, the recent discussions had not been planned with any focus on the 17th Amendment at all. Is the Ministry then proposing that the fundamental rights chapter of the Constitution be theoretically strengthened when the Constitutional Affairs Minister has openly declared his cynicism in regard to the 17th Amendment and allowing independent commissions on the police, public service and the elections to function? This, one must not forget, is a point of view, shared by his Commander-in-Chief.

Then again, are the discussions about expanding the rights chapter not ghastly misplaced at a time when the impetus in rights friendly jurisprudence has decreased dramatically for reasons that are an open secret in Huftsdorp despite weighty tomes written on the subject? Should not outstanding issues in relation to the judiciary such as the recently still unresolved resignations of two judges from the Judicial Service Commission be settled first before even lending legitimacy to a discussion on a ludicrously termed 'new Bill of Rights?

That the Ministry should have the most appalling gall to hold such conference sessions at this particular point in time testifies to the belief on the part of its officials that, not only can some people be fooled some of the time but that all of the people can be fooled all of the time.

I cannot indeed, blame ministry mandarins for holding such views; the lack of gumption, (or rather sufficient intestinal fortitude, as Groucho Marx famously coined), on the part of our human rights community who should be picketing such farcical discussions rather than (some members) participating in them, goes without saying.

This may seem an extreme point of view to some. But desperate situations of the breakdown of the rule of law call for desperate measures. It was indeed because activists were courageous enough to use the weapon of public shame against compromised pro-monarchical public officials in Nepal that now there are celebrations in the streets of Kathmandu. But in Sri Lanka, we are far too polite to emulate such honest anger against the hypocrisy of our ministers. Instead we engage in cosy discussions out of which nothing emerges except the sounds of our voices and the tired refrains of old theories whipped dry. Such indeed continues to be an increasingly bitter reality.

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