Displacing the presumption of innocence of the government

By Kishali Pinto Jayawardena

As has been clear for many decades, the authority of the LTTE stems not from a genuine closeness to the Tamil people but rather as a result of decimating all legitimate dissenters. Unfortunately, the organisation is not led by a leader of the calibre of Nepal's Prachanda or East Timor's Guzmao. And in this context, the doctrine of self determination that is loudly clamored for by some of the Tiger apologists can have no relevance. Self Determination, in so far as international law norms are concerned, when applied to the people of a particular territory can only arise through a process of genuine ascertaining of the will of that people. Assuredly, it cannot be obtained by terror and by coercion.

But the totalitarian LTTE is not alone when blame for past failures in the constitutional reform process is being apportioned. The Government of Sri Lanka has also played its own negative role in this regard. At a time when the Government is still struggling to prove its bona fides in regard to good governance in the South, by what token of trust does it profess to hold out an honest response to the problems of the North and the East?

Recently, the appointment of a political Auditor General consequent to the retirement of Mr SC Mayadunne was prevented only by the consistently stern resistance of the auditors. In the absence of a totally deflated opposition which appears to delight presently only in infighting, the burden has fallen wholly on pressure groups to agitate to protect what is their own.

But the actions of the auditors in that respect, was a single success story. In every other respect, the contrary has been the case as manifested most singularly in one example, by the deafening silence of the legal professionals to outstanding issues concerning the independence of the Bench and the Bar. The Constitutional Council remains to be established and (as predicted) the Parliamentary Select Committee on the 17th Amendment drags on its interminable course with no firm end in sight. Meanwhile, the so-called independent commissions continue to operate, devoid of their constitutional legitimacy, yet with total sangfroid.
In particular, Sri Lanka's National Human Rights Commission patently lacks credibility despite its occasional press releases proclaiming its existence. In which other country with established legacies of constitutional conformity will such a betrayal of public trust occur without continuing outrage, except in Sri Lanka?

Given the whole, it is unsurprising that the recently established Commission of Inquiry to look into selected cases of extra judicial killings in recent times has come under such heavy international scrutiny. The statements of international non-governmental organisations such as Human Rights Watch, Amnesty International (AI) and the International Commission of Jurists during the past few weeks bear testimony to this fact.

In particular, AI's statement during this week's session at the Human Rights Council expressed serious concerns regarding deficiencies in the mandates of the Commission as well as the international Group of eminent persons permitted by the government to act as observers to the functioning of the Commission. Particularly, AI was concerned that the terms of reference of these two bodies do not sufficiently address protection for complainants, witnesses, those conducting investigations and others involved in the investigations.

In addition, it was pointed out that the terms of reference relating to the functioning of the eminent persons group provide that the Secretary to the Ministry of Justice will be the head of the Group's secretariat and that representatives of the President and other ministers will be attached to the secretariat. These provisions, AI opined, will confer a degree of control of the administrative working of the Group which is unacceptable.

Equally importantly, it was observed that the publication of the final report of the Group will be subject to the exclusion by the President of any material which in his opinion may be prejudicial to or absolutely necessary for the protection of national security and public order. AI pointed out that while it may be conceded that security issues may preclude publication in certain instances, this provision is excessively broad and allows for censorship of the Group's report or parts of it.

All three international pressure groups emphasized the need for an effective international human rights monitoring presence in Sri Lanka rather than a national Commission or an observer group, both of which had grave deficiencies in their mandates. To be expected, the response of the Sri Lankan government to this onslaught was extremely defensive. It dismissed concerns that the Commission and the Group may not be able to function effectively and independently and claimed that there had been sufficient processes of consultation before the mandates of the bodies had been finalised.

Nonetheless, there is no doubt that the Government will be now hard pressed to prove that it has indeed, established a credible process of investigation and inquiry. Ultimately, the test will come in the prosecution processes in regard to which the Commission, being a fact-finding body can only make recommendations. The heavy pressure therein is also well manifested in this week's statements by Chairman of the international eminent group, former Indian Chief Justice PN Bhagwati announcing that he would quit if he is not allowed to function independently.

Apropos, it is somewhat deliciously ironic that Justice Bhagwati could have been asked by the government to head the international observer group and, in fact, that he could have agreed to be so involved. Justice Bhagwati has been a long standing jurist of the United Nations Human Rights Committee whose Communications of Views in regard to the Sri Lankan State's violation of provisions of the International Covenant on Civil and Political Rights (ICCPR) were recently thrown out of the domestic judicial window by a Divisional Bench of the Supreme Court headed by the Chief Justice.

As may be recalled, this was on the basis that the country's very accession to the Protocol was unconstitutional as this was held to be 'an act of legislative power' (which ought to have been exercised by Parliament) flowing from the conclusion of the Court that 'judicial power has been conferred upon the Human Rights Committee thereof."
What is interesting is that in their submissions to court, the officers of the Attorney General went so far as to scoff at the qualifications of the members of the UNHRC, implying if not stating outright that the body constituted of individuals who were not even jurists.

Indeed, Justice Bhawati was one of the fourteen members of the division of the UN Committee which had delivered the decision of the UN-HRC in the Sarma case which was in issue before the Court at that time. Consequently, the ironic juxtaposition of the Government requesting him to lend credence to the contested independence of domestic processes of inquiry cannot be allowed to pass by without some caustic comment at least.

In general, what is quite clear now is that, as much as the presumption of innocence had ceased to apply to the LTTE since quite a while back, the Sri Lankan government cannot also afford to take shelter under its comforting cover. All the signs are that if the current culture of impunity for human rights violations is allowed to continue, a very heavy price will need to be paid. Undoubtedly this is as how it should be, after all.