'After all, they are only arresting Tamils'

By Kishali Pinto Jayawardena

My neighbour confided to me in an aside the other day, that she was not sure what the fuss was all about anyway. "After all' she said 'they are only arresting Tamils, are'nt they.' And after all, as she went on to say, heedless of the varying expressions on my face ranging from immediate anger, strong indignation to utter annoyance 'most of them have sympathies with the LTTE, don't they?"

Someone had remarked, I think, Oscar Wilde, though my memory fails me, (and I paraphrase) that life would be perfect if we could choose our relatives as much as we could choose our friends. Undoubtedly, he should have added neighbours to the former category and doubtless, given his consummate wit, may have added something pithy in that regard as well.

The slippery slope of rights abuses

But the problem is simple; how does one contend with a state of mind of this nature? How does one begin to explain that some of the strongest dissenters of the LTTE are indeed, Tamils and that they have been killed for this? That there are many ordinary Tamils less in the public eye by choice but who are equally vehement in their criticisms while not forsaking their ethnic heritage or their right to be part of this country as Tamils? That they do not engage in such criticisms purely for the sake of supporting other political parties in opposition to the LTTE, (now enthusiastic partners with this government), but who are equally murderous?

And how does one begin to explain that the slope is so dangerously slippery and that today it may be a person of a particular ethnicity but tomorrow, it may be a trade unionist, a journalist or indeed, a citizen who prides himself as belonging to the majority race but was unwise enough to speak sharply to a policeman on duty? This is what happens when the Rule of Law breaks down; suddenly, the boundaries become blurred and reason is lost. But how does one explain all this without seeing that infuriatingly blank look of incomprehension in return. It is certainly an unequal argument; on the one side, there is the massive propaganda and on the other side, there is that hopeless plea to reason and sanity, increasing in hopelessness as the days pass by.

Democratic functionality of a system

Let us re-state the principles. There is no doubt that a legitimate State has every right to defend itself. However, the fact remains that it must do so within boundaries; it cannot engage in humanitarian crimes, it cannot engage, (despite the horrendously retrograde policies of the junior George Bush), in torture and it cannot engage in actions that denigrate an entire race. It has been said many times before but is an assertion that bears repetition for its sheer importance; a State is fundamentally different from a terrorist entity. When that difference disappears and a State descends to the level of its most implacable foe, then the very reason as to why the terrorists are being fought, (ie; to preserve a democratic functionality), is obliterated. This is what we have come perilously close to in Sri Lanka today.

A major reason as to why the democratic functionality of the Sri Lankan system is being whittled down is, of course, to do with the Rajapaksa Presidency's disregard for the Constitution and its contemptuous spurning of the 17th Amendment. If crucial oversight bodies such as the National Human Rights Commission and the National Police Commission were functioning to the fullest extent of their constitutional and statutory authority, much of this criticism may have been deflected. If the current practice relating to the retraining of life and liberty rights of people was somewhat more in line with the standards laid down by Sri Lanka's own Supreme Court at one point of time, (let alone international human rights standards), then again there would have been far more sympathy for the government's perennial cry that it is being unfairly bludgeoned. It is a long line of "Ifs" that may have put to shame Kipling's own philosophical musings on the same.

Arbitrary arrests

Let us take just one practical example to illustrate the above. My neighbour's thinly veiled racism becomes pertinent in this context. It is indeed true that arrests of Tamils have now become a recurring decimal, characterized in all instances by common features; indefinite detention under emergency order, solitary confinement, denial of confidential access to legal counsel and in some cases, torture or ill treatment. These are however, the very features of detention outlawed by Sri Lanka's highest Court in the mid nineties in response to the pleas of Sinhalese as well as Tamils and Muslims who had been treated in a manner violative of constitutional norms.

In one strikingly apt instance where a former government Minister, Sirisena Cooray had been arrested on flimsy evidence during the Kumaranatunge regime, relevant principles were forcefully articulated by Justice ARB Amerasinghe (with whom Justices Wijetunge and Asoka de Z. Goonewardene agreed). The Court stated that "The police had their suspicions and hoped that some evidence might turn up to make their suspicions reasonable. However, vague, general suspicions and the fervent hope or even confident assumption that something might eventually turn up to provide a reasonable ground for an arrest will not do." It was held (Rodrigo v De Silva, 1997 3 SLR, 271) that there had been a violation of Cooray's rights and that there had been many mistakes and misunderstandings based on misleading advice given to the Defence Secretary by senior intelligence officials, as a result of which he misdirected himself.

It was somewhat unfortunate that the right of a detained person to confidential legal representation did not form part of the ratio in this case. Earlier, a Bench of judges headed by Justice MDH Fernando had granted interim relief allowing Cooray's right of access to lawyers on the basis that he should not have been denied that right but this did not form part of the substantive judgment.

A remarkably problematic order of the Human Rights Commission

Denial of such access has now become common and has indeed, been recently upheld by the National Human Rights Commission in a reasoning that is remarkable for its complete lack of understanding of applicable rights standards. Thus, in an order dated 31/01/2008, the Commission found that no violation of rights had occurred as a result of a gaggle of police officers insisting that they should be within earshot of two lawyers who had attempted to confer privately with their clients at Boosa. The relevant order (minus its grammatical errors) states inter alia that 'still some international laws and standards have not been incorporated into our law…..further it should be noted that the Sri Lankan government is not bound to follow all international laws and standards."

This is remarkable reasoning for a body which is statutorily enjoined to ensure that national laws and administrative practices are in accordance with international human rights norms and standards (Section 10 (d) of the Human Rights Commission Act).

The question as to the extent to which Sri Lankan laws and practices embody all the guarantees that are contained in international conventions as for example the International Covenant on Civil and Political Rights has been manifested (as an issue linked to the GSP+ trade preferential rights) is now before the Supreme Court. However, it is decisions such as this recent order of the Commission which appear to give the lie to spurious arguments that such compliance is as satisfactory as it could be. What more does one need?