Focus on Rights

There is no doubt that independence of human rights institutions is of the essence. This principle is heavily emphasized by The Paris Principles on National Human Rights Institutions (1993) endorsed by the UN General Assembly. The Paris Principles are widely considered to be the seminal body of guidelines against which the effectiveness of national human rights institutions ought to be measured. The Principles point to several aspects of independence that national human rights institutions must possess.

It is good that the Minister for Human Rights Mahinda Samarasinghe has directed that "there is nothing in law" impeding Sri Lanka's NHRC consideration of two thousand cases of disappearances that the previous Commissioners had decided should be looked into by this body.

To recollect what was examined in last week's column, the crisis of public confidence currently affecting the independence of the NHRC after the present Commissioners were appointed by President Mahinda Rajapaksa bypassing mandated approval of the Constitutional Council (CC) was aggravated by the Commissioners deciding last week, to stop inquiring into complaints of over 2000 disappearances of persons in the past. An extremely disturbing reason had been advanced by the Commissioners for the stopping of its inquiries; viz,"for the time being, unless special directions are received from the government." As taken verbatim from the note of the Secretary to the HRC dated 29.6.2006, this is due to the fact that "the findings will result in payment of compensation, etc."

These 2000 disappearances were a small part of an estimated 60,000 disappearances of persons owing to both the ethnic conflict in the North and the civil conflict in the South. The victims spanned the broad compass of all ethnicities in Sri Lanka: viz, Sinhalese, Tamils and Muslims. Many of these complainants had not received reparation for the disappearances or had been informed as to what had happened to their loved ones despite the decades that had passed since the enforced disappearances.

Minister Samarasinghe's intervention should not have been warranted in the first instance. However, the very fact of this intervention should not detract from the fact that the status quo needs to be set to rights where the NHRC is concerned without delay. The present appointments need to be set aside and upon the constitution of the needs to be appointed properly following the mandated constitutional procedures and after its members are approved by the Constitutional Council. Equally, basic gaps in the law under which the NHRC is established needs to be redressed.

Sri Lanka's NHRC is established under an act of parliament (Act, No 21 of 1996). It is imperative that amendments to Act, No 21 of 1996 should be made. Currently, section 3 (1) of the Act stipulates that the members of the NHRC may be "…chosen from among persons having knowledge of, or practical experience in, matters relating to human rights." These requirements are vague and should be replaced by stricter standards. Section 3(1) of the Act should be amended as follows, in order to require a high level integrity and commitment to human rights from those who are appointed as members: …chosen from among men and women who are independent of government and are known for their integrity and proven expertise and competence in the field of protecting and promoting human rights. They should be drawn from a variety of disciplines including relevant professional groups and the non-governmental sector." (See Amnesty International Proposed Standards for National Human Rights Commissions (1993)).

Moreover, members to the NHRC must be appointed on a full time basis and the Act must be amended to reflect this requirement. Currently, the membership is restricted to five. The Act should mandate that members, if they are public servants or are in semi-public service, be released on leave for the duration of the membership without affecting their seniority and other benefits of employment.

Another problematic feature of the Act are the powers conferred on "the Minister" (unspecified portfolio) to make regulations regarding the implementation of the Act, including regulations regarding the conducting of investigations by the NHRA (section 31). Section 31 of the Act should be repealed. Similarly, the Act must be amended to ensure that the NHRC has the authority to select and appoint its own staff.

According to the Paris Principles, an important aspect of independence is financial autonomy of a national human rights institution. The Principles stipulate that "… it will generally be advisable to ensure that the budget of a national institution is not linked to the budget of a governmental department or ministry."

The necessity for the State to provide adequate resources to enable the NHRC to function effectively is obvious. The Paris Principles point out that "[f]inancial autonomy must be accompanied by adequate, continuing funding". In the absence of adequate government assistance, past Commissioners of the NHRC had been successful in raising donor funds. However, given the current constitutional crisis regarding the direct presidential appointment of its present Commissioners much of this funding has been suspended leading to a financial crisis of some severity.

There are other problems with its functioning that arise from lacunae in the Act. Though past Commissioners of the NHRC (appointed properly and constitutionally) attempted to transform the NHRC to an effective human rights monitor, their efforts were hampered by the fact that under the Act, the NHRC can investigate and inquire into only violations of fundamental rights recognized by the Constitution of Sri Lanka. This is a serious flaw as the Constitution recognises only a limited category of rights and does not include the right to life even though creative judicial interpretation has sought to bring in the right to life in a very limited sense. The mandate of the NHRC should be expanded so as to permit it to exercise its authority not only with regard to fundamental rights guaranteed by the Constitution, but also with regard to international human rights standards that Sri Lanka as a State is legally bound to respect and protect.

It may also be relevant to consider whether the NHRC should possess the mandate to investigate abuses of human rights by non-State actors as well. In a country which has seen decades of conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan government where ordinary people have been subjected to the most extreme violations of life and liberty not only by government forces but also by the LTTE, the NHRC must have the mandate to also investigate abuses by private actors, in appropriate circumstances. Section 14 should be further amended to expand the scope of the mandate of the NHRC to investigate abuses by non-State actors; "taking into account the nature of the right and the nature of any duty imposed by the right" [see Article 8 (2) of the Constitution of South Africa, 1996].

It is essential that a through overhauling of the NHRC Act takes place. In the alternative, the relegation of the NHRC to yet another pitiable example of Sri Lanka's dysfunctional institutional process is a foregone conclusion.