Blind refusal to see the realities for what they are

By Kishali Pinto Jayawardena

Inflammatory debate on whether or not United Nations High Commissioner for Human Rights Louise Arbour had called for the presence of a UN monitoring mission in Sri Lanka has served to conveniently obfuscate some eminently sensible points made by her last week. It is doubly unfortunate that the 'Secretariat for Coordinating the Peace Process' has joined in this shrill exchange. Indeed, the Secretariat's angrily incessant verbosity hardly serves as encouraging sober discussions on these issues and leads one to question whether it may not be more appropriate to rename it rather, as the 'Secretariat for Coordinating the War Process.'

Leaving aside relative trivialities such as these however, the points made by Arbour go to the very roots of the credibility of Sri Lanka's domestic institutions that supposedly exist to enforce legal accountability. This is made clear in the formal press statement issued by her Office at the conclusion of her mission. The overall concern is the absence of 'an adequate and credible public accounting for the vast majority' of rights violations and the absence of 'more vigorous investigations, prosecutions and convictions.'

Arbour's further remark that 'critical elements of protection have been undermined or compromised' in relation to the Singarasa case together with the ICCPR Act which, as she points out 'only partially addresses the issues and risks confusing further the status of different rights in national law" is also extremely pertinent. Equally so is her warning that confidence (both locally and internationally) in the efficacy and independence of the Human Rights Commission of Sri Lanka has been undermined leading to a possible loss of accreditation to the international body governing these institutions.

The issues that she has raised, remain agonisingly familiar to domestic rights activists. As repeatedly adverted to in this column, the question of political will in regard to the investigations, prosecutions and convictions of grave human rights violations is central to any argument made on behalf of the government that national institutions are working perfectly satisfactorily.

The actual fact is that national institutions whose primary task is to ensure legal accountability, are not working satisfactorily at all, as buttressed by hard statistics thereto. One virtually unchallengeable example is the number of convictions of members of the security forces and the police for enforced disappearances of thousands of Sinhalese, Muslims and Tamils during the eighties, (as disclosed in official data submitted by the Government of Sri Lanka to the Committee Against Torture in February 2007), which are a mere twelve. In one hundred and twenty three cases, the accused had been discharged in the High Court. Many more cases have been pending for long years.

And these are just the relatively small number of cases that made it to the court in the first place whereas thousands of perpetrators were not brought before the law in that limited sense even though they were identified as such by the three 1994 Commissions of Inquiry into Involuntary Removal or Disappearances of Persons as well as the subsequent 1998 Commission. The law is meanwhile even more truant in regard to its enforcing of accountability in regard to wanton killings of civilians in the North/East. Specific documentation showing the all encompassing and (dare one say it) the seemingly deliberately engineered failure of the legal process thereto, illustrates this point very well.

So how, in the name of all that is sensible, could we say that our legal process is working satisfactorily, citing meanwhile only one or two high profile instances such as the Krishanthi Kumaraswamy case or the Embilipitiya disappearances?
Rather than empty rhetoric, actual prosecutorial and judicial will to bring about deterrent convictions of perpetrators is needed. Clumsily put together Commissions of Inquiry in terms of a law that was originally used for inquiring into the conduct of persons holding public office rather than for investigating complex cases of extra judicial executions and enforced disappearances, can accomplish only very little. What we need are carefully thought out changes to the prevalent criminal law and procedure, which is (in any event) not working satisfactorily even ordinarily, as manifested again by the 4% rate of convictions for grave crimes.

The fact that there have been just three convictions in terms of the Convention Against Torture Act from 1994 (date of enactment of this law) to date is another good reminder that there is great dysfunction between the reality of grave human rights violations and the response of the law thereto. Merely enacting a Witness Protection law will not do. There must be a comprehensive effort to adapt the system to confront one of the greatest challenges that the country faces today; namely the restoration of public faith in the efficient and apolitical working of the law in regard to extra judicial executions and enforced disappearances in particular.

This same logic applies to the reactivation of the 17th Amendment and the constitutional commissions. The credibility of the Human Rights Commission (HRC) of Sri Lanka is at its lowest ebb today. The strictures passed by Arbour are important given a scheduled re-accreditation of the HRC this month by the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights, for which the Secretariat is the National Institutions Unit of Arbour's office.

The HRC is due to be examined by the ICC on two questions. First, whether the appointment of the current Commissioners is in compliance with the law of the Commission and in compliance with the Paris Principles, given that the prior approval of the Constitutional Council was not obtained. Secondly, whether the actual practice of the Commission remains balanced, objective and non-political, particularly in regard to the discontinuation of follow up to 2000 cases of disappearances in July 2006.

This second question relates to the HRC advancing an extremely disturbing reason for stopping the inquiries into these disappearances "for the time being, unless special directions are received from the government." A verbatim citation from a note of the Secretary to the Human Rights Commission dated 29 June 2006 attributed this decision to the fear that "the findings will result in payment of compensation, etc". With public outrage following the leaking of this instruction, the Minister of Human Rights was ludicrously compelled to advise the HRC to proceed, stating that it does not need 'instructions from the government' to do so. While the inquiries continued thereafter, their credibility remained in doubt.

Other recently contested actions of the HRC include the arbitrary issuance of a circular without public discussion, purporting to limit the period of time within which a petition could be filed before the HRC to three months, despite the fact that the empowering Act under which the HRC is established prescribes no such time limit. Indeed, in recent months, a staffer of a Colombo based non governmental organisation had been threatened with contempt by a Commissioner for attempting to question the current working of the HRC.

This detailing of what is wrong with our domestic institutions is not to say, as this column has reiterated previously, that a UN monitoring mission will be the magical cure for all ills. First and foremost, we need to be able to remedy our own ills and use international support constructively and carefully for that purpose. But there is no doubt that those who insist that we have no ills to be remedied, should be clouted on the ear for their blind, complacent and self serving refusal to see the realities for what they are.