Focus on Rights

For the past several years, it has seemed increasingly surreal, (to use a much abused but still persuasively evocative term), to be writing on human rights. While the assassination of politicians has been met with varying reactions, (inevitably decreasing in intensity as the quality of Sri Lanka's political figures began gradually to plummet to the depths), it is vastly different where civilian deaths or injuries are concerned.

Whether these come about as a result of cynical collateral damage through government air strikes in the North/East or the horrendously brutal civilian targets by the LTTE in the other parts of the country or indeed, as a result of internecine warfare between the paramilitaries and the LTTE, the result is the same. In the aftermath of a bomb blast of the nature of what took place yesterday, or weeks back at Piliyandala, or months back at Ratmalana, (and I could go on in this respect), what is the point, I wonder, of talking of human rights?

Are these real concepts to the parent suffering from the death of a child in these blasts or a mother shivering in anguish in the East over the rape and abduction of her daughter during the recent elections as reported this week, with the authorities including the police oblivious to her pleas for effective investigation and inquiry? The recent brutal killing of human rights activist Maheswari Velautham during her return to Jaffna to see her sick mother is a further example. I remember Maheswari as a likeable and outgoing lawyer from years back; her political affiliations may have led to extreme differences of opinion in more recent times but in what Bible does this justify killing? So, we are compelled to return to our question. Are concepts of human rights only of relevance to abstract discussions or long winded presentations? These are indeed, extremely difficult questions to answer in the face of such all pervasive sorrow and fear.

In certain instances however, the law does stand true in these testing times, albeit with great effort. This week's majority decision by the Supreme Court ruling that a violation of the right to freedom from torture, inhumane and degrading treatment of a lay litigant Tony Michael Fernando who had been assaulted while during detention in prison custody, is a case in point. Justices Shirani A. Bandaranayake writing for the majority, pointed out that though Fernando had been generally healthy when admitted to prison care, he had sustained injuries during custody which were not explained by the prisons officials except to claim that he had suffered a fall.

The Court refused to accept this explanation, pointing to the principle that a mere denial by custodial officers would not suffice to overrule allegations of torture when a victim has suffered injuries in their custody. Indeed, commendable precedent (Jayasinghe v Samarawickrema and others, SCFR No 157/91 of 12.01.1994) was cited when it had been pointed out by Kulatunge J that such denials will not be accepted by Court. This was articulated by the judges in Fernando's complaint to mean that, where injuries are caused while a person is in detention, the burden of adducing evidence to show that the persons having custody were not responsible, shifts to them.

Fernando's case is, of course, fairly well known in Sri Lanka and outside given that his imprisonment was consequent to an order of the Court that he had committed contempt of court by speaking loudly and filing motions in support of his application. After Fernando took his case before the United Nations Human Rights Committee in terms of the optional protocol to the International Covenant on Civil and Political Rights (ICCPR), the Committee opined that there had been a violation of ICCPR Article 9(1) re the right to freedom from arbitrary detention (Anthony Michael Emmanuel Fernando v Sri Lanka, CCPR/C/83/D/1189/2003, adoption of views, 31-03-2005). It was requested that Sri Lanka enact a Contempt of Court Act. This has not yet been done though a Parliamentary Select Committee headed by late Minister of Foreign Affairs Lakshman Kadirgamar deliberated for many months over the question of codification of the laws of contempt some years back.

Generally, the deplorable state of the country's prisons, the lack of proper infrastructure, its incapacity to accommodate greatly increased numbers of prisoners are not encouraging features. Reports of the International Committee of the Red Cross in May 1999, September 2000, October 2001 and in 2002 observe that prison staff of the Bogambara prisons ill treat prisoners with impunity. One report refers to allegations regarding 'the violent nature of some guards, specially those involved in searches for drugs and other banned items. The Report further stated that prisoners alleged that they had been beaten for complaining about the quality of prison food. The delegates reported that they had seen physical marks on two prisoners which were consistent with their allegations of ill treatment and that due to fear of reprisals, these prisoners were not willing to have their complaints conveyed to higher prison authorities.

The basic truth is that the idea of human rights as a non-political and deeply powerful weapon still stands true despite the many who wish to abuse it for their own benefit. Its message is, indeed, the most passionate gift to itself that human kind has ever devised, notwithstanding the ceaseless bloodletting through the ages. It is inevitable therefore that such a powerful weapon will be misused by politicians (in opposition as well as in government), by charlatans masquerading in the guise of activists and by other special interests. It is also inevitable that this idea will be scoffed at by the cynics and unbelievers who will point to the many instances where the concept has been abused, as illustration that it is fundamentally unsound as a principle by which society may regulate itself. However, such logic is as faulty as saying that the historically archaic and power ridden doctrines of the Church or the Sangha have resulted in a dilution of the ultimate truth underlying universal human existence that was preached by Christ and by the Buddha.

Essentially, political power, as Shelley's gripping 'Ozymandias' reminds us, is transient; all kings, all rulers will, one day, be nothing but shattered visages of stone. It is however, the democratic institutions that they build that will remain as true testament to their work. In the converse, rulers who are only preoccupied with glorifying themselves will, in the fullness of time, leave nothing behind but the distasteful memory of their excesses. Ultimately, victims of human rights violations need to have their rights vindicated by democratic institutions and none other. For that, the system has to function properly. More than anything else, the law needs to be manifested though its fair and non-political application, not merely limited to verbose and self glorifying discourses on religion and all other topics under the sun, as may be colloquially expressed.

Focusing on cynical collateral damage