federalidea.com

by Praneetha Abeywickrema

Several foreign donor agencies including the UNICEF recently ceased funding the Human Rights Commission of Sri Lanka (HRCSL) alleging that the appointments of the Commission are unconstitutional in terms of the 17th Amendment to the Constitution. The unconstitutionality of the appointments made by President Mahinda Rajapaksa has blatantly been up for discussion ever since they were made. This piece of writing discusses how the unconstitutional act of the President has ultimately affected the human rights of the Sri Lankan citizens at large.

Anyone closely attached to the financial arrangements of a public institution, government department or Ministry would know the crucial role played by foreign aid in carrying out their activities. Take any activity which is beneficial to the public at large and one would definitely find that it is one of those considered as ‘extracurricular activities’ carried out by public bodies with foreign aid. Be it rural development, road constructions or vocational training for school leavers, foreign aid always play a vital role.

The Human Rights Commission of Sri Lanka (HRCSL) is no exception when it comes to the next-to-nothing amount of government treasury funds. Hence, like most of the other public bodies in Sri Lanka, the HRCSL also relies on foreign aid in carrying out novel programmes in the best interest of the public. The HRCSL from time to time carries out programmes funded by foreign donor agencies on protecting and promoting human rights which is there mandate under the Human Rights Commission of Sri Lanka Act, No.21 of 1996. The Anti Torture Programme funded by the Swiss Government and Child Rights protection and promotion programme funded by the UNICEF are classic examples. The main activity carried out under the Anti Torture Programme was paying surprise visits to Police stations to probe into incidents of torture as well as unlawful arrests and detentions. This visiting mechanism was found to be very useful since the Police, being unaware when a group of HRCSL officials would pay a visit, were more cautious in executing such violations. Moreover, the HRCSL conducted island-wide public awareness programmes, seminars and workshops on prevention of torture and cruel and inhuman treatment by executive and administrative actions. The Commission, acting on the zero tolerance policy on torture carried out effective activities to protect the fundamental right of freedom from torture, and cruel, inhuman and degrading treatment guaranteed by Article 11 of the Constitution. Moreover, the HRCSL carried out one year programme on upgrading the human rights conditions of the 20 State Children’s Homes in Sri Lanka which proved to be extremely successful. The above said activities would never come to reality had the Commission depended entirely on Government funds.

The Constitutional Council was created by the Seventeenth Amendment to the Constitution in 2001 with the purpose of making recommendations in making appointments to national institutions. Article 41(b) expressly requires that “no person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council.” The establishment of the Council sought to remedy what had previously been unrestrained Presidential discretion over the process of appointment of members to national institutions.

According to the Seventeenth Amendment, the Council shall consist of the Speaker as Chairman, the Prime Minster, the Leader of the Opposition, and one person appointed by the President, five persons appointed by the President, on the nomination of both the Prime Minister, the Leader of the Opposition; one person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President.

The Constitutional Council which was only effectively operative for one term of three years, from March 2002 to March 2005 ceased to operate at the expiration of its term and have not since been reappointed. The reason generally cited for this delay is completely of a political nature. The issue of which of the minority parties shall be allowed to nominate the final member of the Council on behalf of independent groups or independent political parties has not been resolved. Unfortunately, neither the President nor the other parties have shown much interest in coming to a solution as well.

Section 3 (2) of the Human Rights Commission of Sri Lanka Act lays down the appointment procedure for the HRCSL. Accordingly, members are to be “appointed by the President, on the recommendation of the Constitutional Council.” Since it was anticipated that the Human Rights Commission of Sri Lanka Act would slightly precede the establishment of the Constitutional Council, Section 3 (2) provides that “during the period commencing on the appointed date and ending on the date in which the Constitutional Council is established, members of the Commission shall be appointed by the President on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition.”

According to Section 3 (1) of the Human Rights Commission of Sri Lanka Act, the five members appointed for the Commission shall be “chosen from among persons having knowledge of, or practical experience in, matters relating to human rights.” However, since the Act is silent on who satisfies the criteria entailed by ‘knowledge of, or practical experience in” existing international norms have to be applied to fill in the gaps left by the Act. Hence, the Paris Principles which stipulate the accepted standard for the functioning of National Human Rights Institutions (NHRIs) should be applicable in the interpretation of the Act. The Paris Principles set out that “the composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces.”

In addition, the Commonwealth Secretariat ‘National Human Rights Institutions Best Practice’ is of use for the interpretation of the Act. Thus, the fundamental requirement of independence for the effective functionality of NHRIs includes freedom from “outside restraint or improper influence” and the requirement that appointments not be determined exclusively by the executive. According to the ‘Best Practice’ the members have to reflect gender balance, the ethnic diversity of society and the range of vulnerable groups in their respective societies as well as “the qualifications necessary to undertake the role”

However, despite the Constitutional requirements and the international standards, the President in May 2006, shortly after being elected, directly appointed five new members to the HRCSL. The President’s appointments, similar to those to the Public Service Commission (PSC) and the National Police Commission (NPC) said to have occurred without adhering to any transparent or consultative process. By that time, several months had passed after the tenure of the previous Commission lapsed. The Commission was inoperative in the sense that its final orders could not be issued without the signature of the Commissioners. However, it should be noted that the HRCSL as a public entity which investigate, inquire into fundamental rights violations and protect and promote human rights in general was not practically inoperative even for a single day. All inquiries were carried out as usual and all other activities aimed at protecting human rights were operative not to mention with the tremendous commitment of the three Directors and the rest of the staff of the Commission.

Within one year of these unconstitutional appointments, almost all donor agencies which had been funding the HRCSL have ceased doing so. A representative of the Embassy of Switzerland which funded the Anti Torture Programme has once justified their decision to stop funding saying that they are accountable for the citizens of Switzerland of whose tax money that it is paid for an unconstitutionally appointed Commission in Sri Lanka. However, it should be noted that despite of the Commission which is unconstitutionally appointed, even today the activities of the HRCSL are carried out as usual. The inquiries conducted and other programmes including education, awareness programmes, researches etc. are carried out without being in anyway affected.

The fact that the present Commission is hesitant to probe into some incidents of human rights violations such as the extra judicial killings caused by the armed groups in the Northern and Eastern areas could never be denied. However, the alleged unconstitutional appointments do not affect most of the activities relating to the protection and promotion of human rights, which are vital for a large majority of the public. These activities which are mostly at the responsibility of the permanent staff including the Directors are operative notwithstanding the unconstitutionality of the Commission. On the other hand, the closing down of foreign funds has affected the normal activities of the HRCSL which are of service to society. The decision of the donor agencies to cease funding the HRCSL is not likely to be of deterrent effect to the executive but has infringed the human rights of a large segment of society. Indisputably, the best practice should always be encouraged. However, if the stopping of funding the HRCSL has not served its intended purpose, punishing the citizens for the sins of their representatives could not be regarded as justifiable as well.

The Writer is an Attorney-at-law, LL B (Colombo)

The Presidential Commission of inquiry into Serious Violations of Human Rights wishes to strongly refute the statement issued by the International Independent Group of Eminent Persons with regard to its recent comments that the current inquiry ‘does not meet international standards.’

Justice Nissanka Udalagama, Chairman of the COl states that the Commission ‘does not comprehend how the IIGEP came to hold the opinion that the COI’s Investigations are not transparent when the IIGEP and their Assistants have been given the opportunity and have in fact questioned witnesses in detail at these sessions. The COI has repeatedly informed IIGEP that at the inquiries the Public including affected parties will be allowed access.”

Justice Udalagama also notes that the IIGEP assert that they have attended 76 sessions of investigations of the two cases investigated, namely; the killing of 17 Aid Workers of Action Contre La Faim in Muttur, and the killing of 5 youths in Trincomalee.However he observed that in fact out of the total number of 76 sessions of investigations conducted, only one member of the IIGEP has been present at 37 of these sittings while only two were present at 2 sittings and three present at 1 sitting (The total number of IIGEP members appointed by the President is eleven).

Assistants to the members have been present but the COI chairman says “the attempt to portray the Assistants as representatives of the IIGEP at the proceedings is contrary to the Presidential Invitation which only permits their appointment to provide necessary assistance to a Member of IIGEP. In any event only one or sometimes two Assistants out of 10 Assistants have been present at 76 sessions. Thus the IIGEP has not been present to observe over half the proceedings and therefore the credibility of any comments made by the IIGEP must necessarily suffer from the consequences of such absence.”

The Chairman also says the observation by the IIGEP that there has been no full and timely disclosure by COI is not acceptable. In fact COI has taken every possible step to ensure that such full and timely disclosure has been made and the COI invites members of the IIGEP to be present at investigations on a continuous basis in order to observe such full and timely disclosure. Justice Udalagama also states that the statement made by the IIGEP that its recommended corrective actions have not been adopted by the COI is contrary to facts.

The IIGEP has in fact made very few suggestions for corrective actions some of which have been accepted and acted upon by the COI. One example is the response to the criticism levelled against COl by IIGEP for obtaining the services of Members of the Official Bar who work under the guidance, supervision and direction of the Commission. Although the COl does not accept the validity of such criticisms, in deference to the views of the IIGEP the COI has enlisted the services of Counsel of the Unofficial Bar including two of the most outstanding members of the legal profession in Sri Lanka — Mr. R.K.W. Goonesekera and President’s Counsel Mr Ranjit Abeysooriya,

“The undoubted Eminence and wide experience of the IIGEP cannot be a substitute for the ground observations by the IIGEP. Otherwise the IIGEP will be reduced to making their comments with regard to the work of the COI on the basis of hearsay which is undoubtedly contrary to international norms and will militate against the credibility and value of such comments,” Justice Udalagama states.

The COI further notes that due to the lack of an adequate presence of the IIGEP at the sessions, the collective wisdom of the eleven members of IIGEP is unfortunately, not reflected in the observations of the IIGEP as was intended in the Presidential Invitation to the IIGEP.

Despite the absence of national legislation for Witness Protection in Sri Lanka, the COI has developed a scheme of witness protection which elaborates rigorously researched rules and study of international best practices. Copies of such rules were shared with the IIGEP at the beginning of the COI’s term and did not receive any adverse comment from the IIGEP which suggested that the IIGEP was satisfied by such a scheme The COI notes that right throughout the investigation process initiated by the COI, this scheme has beer and will continue to be in operation.

The COI notes with regret that the IIGEP has resorted to criticizing the mechanism repeatedly which could have the effect of undermining the work of the COI. In the event of genuine concern of the lack of adequate protection for witnesses it would have been more befitting for the IIGEP in the interests of bringing the perpetrators to justice, to bring to the notice of the COI such shortcomings in a direct and discreet manner rather than publicly announcing such dissatisfaction lest it has the effect of discouraging potential witnesses from coming forward to give evidence.

The International Independent Group of Eminent Persons (the IIGEP) was mandated by HE the President of Sri Lanka to observe the investigations and inquiries carried out by the Commission of Inquiry (the Commission), in order to ascertain that its work is conducted in a transparent manner and in accordance with international norms and standards.

In this context, the IIGEP convened its quarterly plenary session in Colombo in November 2007, during which the IIGEP held meetings with HE the President as well as the members of the Commission of Inquiry to convey its latest observations on ongoing in-camera investigations and discuss matters arising with regard to the Commission’s move to public inquiries.

The following observations by the IIGEP cover the period upto and including the 30th November 2007.

Update on investigations

Since the Commission commenced in-camera investigation sessions in May 2007, the IIGEP or their representatives have attended 76 sessions (up to 12 November 2007) of the two cases under investigation, namely the killing of the 17 Action Contre La Faim aid workers in Muttur in early August 2006 and the killing of 5 youths in Trincomalee on 02 January 2006.

In addition to the IIGEP’s observations in previous statements, the IIGEP further notes shortcomings in the following areas pertaining to the conduct of investigations by the Commission: the failure of the Commission to effectively probe the failings of the original police investigations into the cases under consideration as well as the difficulties encountered by the Commission in securing cooperation and disclosure of information from state officials and other persons.

Established by Presidential Warrant, the Commission is required to investigate and inquire into the propriety and efficacy of the investigations already conducted by the Police into the incidents contained in the mandate, including the “possible reasons that may have influenced or been relevant to the conduct of investigations”, and comment on such investigations. As a fact-finding body, a critical aspect of the Commission’s work is to identify why the original police investigations failed to identify and prosecute the perpetrators of these serious crimes. The Commission has so far not succeeded in discharging this most crucial element of its mission.

On 13 November 2007, the Commission received confirmation of the extension of the Warrant by one year to 2 November 2008. The letter from the Presidential Office was copied to the IIGEP and subsequently published on the Government’s official websites to conduct public inquiry sessions in smaller groups and thus speed up the process. The IIGEP, however, is of the opinion that the Commission should not delay the commencement of inquiries on this basis. The IIGEP notes that the present Act does not have a quorum rule.

Conclusion

The above issues reinforce the IIGEP’s prior assessment that the Commission of Inquiry’s process falls short of international norms and standards. The Commission’s work also lacks transparency. For instance, all sessions conducted by the Commission have been held to the exclusion of the public, the victims and their families and, on occasions, the IIGEP. In addition, there continues to be a lack of full and timely disclosure of information to the IIGEP. The IIGEP reiterates its concerns regarding the Commission’s lack of independence, ineffective witness protection measures and shortcomings in the investigations.

At its November meeting, the IIGEP concluded that the persistent disregard for its observations and recommendations by the Government of Sri Lanka and the Commission of Inquiry tends to render the IIGEP’s continued role irrelevant. With the Commission’s mandate extension and the imminent start of public inquiries, the IIGEP urges the Commission and the Government to take immediate steps for implementing corrective action.

BY Dr. VICKRAMABAHU KARUNARATNE

Rakshaka of Lakbimanews says “it is clear that the Rajapaksa administration is getting a certain type of tacit international support for its war on the LTTE. But today’s international community does not treat bad governments the way they used to-by censure. What they do now is execute regime change”. This is an interesting statement. But the problem is to ascertain what one assumes to be the international community. After the Second World War, in the era of the cold war, the international community was assumed to be divided into strictly antagonistic camps, Imperialists led by the Americans and the Reds led by the Russians. This notion was very popular with films, plays and cartoons consolidating the belief.

Political change

Battles were launched on economic, political and military planes with secret services playing very important roles. There were those who tried to explain every political change world over, in terms of these international battles. In the meantime, the global capitalist system developed into a MNCS system with unbelievable growth and integration. The economic management centres, the World Bank, the IMF and the WTO became new power centres. The so- called communist system proved to be nothing but a degenerate, distorted and corrupt statistic entity that could not face the tide of global capitalism. Trotsky predicted a long way back, that there should be a political revolution to infuse new blood into these statistic entities or that these should leave history.

So, in the end, this so-called communism was thrown out every where except, perhaps in Cuba which has taken some positive steps to alleviate its deformations. Now there is a new trend towards challenging the hegemony of global capitalism, especially in Latin America. Since this is only a beginning, the real international community is global capitalism.
Sometime back, global power was seen as a political power reduced to the Washington /London axis or the Anglo- Saxon leadership. But Marx was proved right again; it is the economic needs of the system that has the final say. Accordingly American leaders have changed; and what happened in Australia is truly remarkable.

Yes, in spite of criticism, global capitalism is yet to reject the Mahinda regime. It may need a better person to handle the Tamil national problem. But that person has to survive against the rising social unrest. He has to continue with a wide range of projects that were initiated with the support of global capital. These projects have penetrated rural society and spread throughout the country, including the East.

[Dr.Wikamabahu Karunaratne participating at a protest condemning media rights violations-Pic by: Dushiyanthini Kanagasabapathipillai]

Suppress opposition

In spite of war and protest, the chauvinist regime of Mahinda has started a wide range of projects with international backing and continues to suppress opposition. Mahinda has a special link with the JVP leaders and that keeps most of the protests in check. He continues his special relation ship with old and opportunist Left leaders and that is an added advantage. Though social unrest is boiling from below, the unrest on the streets is still far below hartal level. Mahinda managed to keep both Thondaman and Chandrasekara within the Cabinet; thus controlling the pressure exerted by the estate workers. His populist tricks are still working and he keeps many worker based political leaders in his political dungeons. All these are important when economic stability is considered.

The time when economic analysis was done disregarding social unrest is over. Social indicators are included into the economic indicators for a proper analysis. In that sense all instruments that control social unrest are taken into account. Ranil is talking about corruption and inflation but he has no mechanism to counter the pressure of the JVP or the trade union movement. It is doubtful whether he is trusted by the Tamils or any other minority with his contradictory statements on their issues.

The international community is a matrix with a wide range of abilities. It can ascertain the true value of a statement using many monitors. This is the age of information and exploitative power is well equipped with knowledge. Loyalty to the system is irrelevant unless it is backed by solid perspectives.

Sometimes plain talk is more expressive than crafty explanations. Mahinda, I believe, falls into the former category. Maybe that is his strength in relation to the international community. He has managed to continue the war while controlling the unrest in the South. Economic development is going according to the agenda of the exploitative system. We are against it, but who cares!

Robert Blake Jr, the US ambassador to Sri Lanka stated in Colombo that genuine devolution from the national level to the province,district and local levels would provide all of Sri Lanka’s communities with a greater say . He also emphasised the importance of the on going APRC process.

Ambassador Blake made these remarks at a book launch ceremony of Sri Lanka Economic Association’ held on Dec 18th . The text of the US envooy’s address is reproduced below

Professor Indraratna, Members of SLEA, Authors, Ladies and Gentleman

It is an honor for me to join you today for your annual book launch, and to congratulate both the authors and the Association for their work in bringing greater focus to these important subjects. I am certain that both of these books are well worth a detailed read, and that they maintain the high standards that we have come to expect from SLEA publications.

I’m also particularly happy to see them issued in hard copy. Despite living in a digital age, publishing books in printed form is, and will continue to be, an important way to share facts, opinions, and ideas. By that I mean that there are still a few vital topics that cannot be handled by text message or Blackberry!

[Ambassodor Robert Blake Jr - File Photo, By Dushiyanthini Kanagasabapathipillai]

Speaking of Blackberries, I was perusing the internet last night for something erudite to say about economists. The best I saw was a remark that economics is the only profession where two people can win Nobel prizes for saying exactly the opposite things. I think that gives me sufficient cover to proceed with my speech.

Since I am no economist and any attempt to comment on price theory would quickly expose my deep ignorance, I’d like to focus my remarks on the book Inequity, Poverty, and Development, which grew out of SLEA’s August 2007 conference of the same name at the BMICH. I know that the editors, Professor Indraratna and Dilani Hirimuthugodage, the SLEA staff, and all the contributors worked very hard to produce this book as both a record of that event and as a continuation of the discussion that occurred at the conference. This is a timely book containing many fine essays.

The book provides a detailed look at how inequity and poverty affect development, and how the links between the three are clear and obvious. As Governor Cabraal highlights in his chapter, the distribution of global gains is extraordinarily unequal. Although there has been some improvement throughout the past century in the conditions in which mankind lives, inequalities continue.

These inequalities affect people living in the developing world far more seriously than they affect residents of developed countries. They exist at a macro-economic level, but are felt and best understood on a micro scale. For example, it is unfortunately the poorest of the poor within Sri Lankan society who continue to suffer the most from poverty, inequity, and inequality. Development will continue to be hindered until greater efforts are made to combat these issues.

In Sri Lanka, perhaps more so than in some other countries within Asia, the links between poverty, inequity, and development-whether stemming from the consequences of history or the ethnic conflict-are readily apparent.

For example, residents of the Western Province have experienced a decline in poverty and a dramatic increase in growth and development-at a rate double that of other provinces-within the past 10 years. That progress was not matched in other regions, where development was comparatively low and poverty remained high.

In her essay, World Bank Country Director Naoko Ishii highlights the phenomenon of “inequality traps.” This phenomenon, if I may quote from Ms. Ishii’s paper, occurs when “an unequal distribution of wealth and power in a society..leads to the creation of institutions that systematically favor the interest of those with more influence,” thereby perpetuating inequalities. She goes on to highlight three ways in which Sri Lanka can combat inequality traps: by investing in human capacities, expanding access to infrastructure, and by focusing on institutions that support a higher growth trajectory.

Her comments, combined with the detailed research of Swarna Jayaweera & Chandra Gunawardena, Raja Korale, and others in this book not only help explain the relationships between inequity, poverty, and development, but also give a partial roadmap for improving the current situation.

I’d also like to note a related hindrance to development which several of the contributors touched upon: corruption. The cost of corruption is difficult to quantify, but there is little doubt that it has dramatically negative economic as well as political consequences.

Corruption damages economic development and reform, impedes the ability of countries to attract foreign investment, hinders the growth of democratic institutions, undermines rule of law, concentrates power in the hands of a few, and erodes public confidence in its leaders. Many polls have shown that the Sri Lankan public feels that corruption is one of the highest priorities the Government should address.

Of course, corruption is not a uniquely Sri Lankan or American phenomenon. It is a worldwide phenomenon that affects all of us. The United States experiences its share of corruption, just like others do. But my country also has strong, independent institutions that work to improve legal, administrative, and societal mechanisms needed to prevent and prosecute corruption. I invite all of you to look at the website of the famous FBI. It does not just focus on terrorism, drug smuggling, and violent crime, as you might expect. It also lists anti-corruption as a major priority, and cites many investigations and busts that prove the FBI is serious about this mission.

Sri Lanka has taken several important steps in the struggle against corruption. Your country enacted a bribery and corruption law. You have established a Commission to Investigate Allegations of Bribery or Corruption. You have also enacted an Assets and Liabilities Declaration Law, put in place a law to control money laundering, and signed the U.N. Convention Against Corruption. Following the example of India and others, Sri Lanka also would benefit from the passage of a Right to Information Law to give its citizens the right to know how their taxes are being spent by government agencies.

Properly implemented, and with the true will of the government and parliament, these initiatives can make a difference in the rate of corruption, and ultimately in the development of Sri Lanka and the alleviation of poverty.

The last month in Sri Lanka has seen a period of political drama. With the budget now passed, the government has an important opportunity to focus its attention on addressing poverty and inequity. One of the best ways it can do so would be to complete the APRC process and thereby lay the basis for a negotiated solution to Sri Lanka’s conflict. The All Parties process offers a significant chance not only to effect meaningful power-sharing with the regions as an essential component of constitutional reform, but also to build peace through development and by reducing regional poverty inequities. Genuine devolution of power from the national level to the provinces, districts, and localities will give all of Sri Lanka’s communities a greater say in how resources they are allocated should be spent and the issues they want their elected representatives to give greater focus to.

One region that must be an early priority is the East. Sri Lanka has a significant opportunity to stabilize and develop the East in a manner that would demonstrate to all Sri Lankans, but particularly Tamils and Muslims, that they have a bright future within a united Sri Lanka and that the Government is serious about ensuring their rights and providing opportunities equitably within a pluralistic state. In short, a successful transition in the East can be an important confidence builder and a building block for a future negotiation process.

Conversely, the government faces significant risks if it fails to seize its opportunity in the East. Specifically, a failure to effect an orderly transition from military to civilian control, a failure to consult elected representatives of the Tamil, Muslim and Sinhalese communities on the development and other programs now being devised for the East, and a failure to rein in paramilitaries are all likely to destabilize the East and harden minority attitudes and even spark violence.

The government wisely has pledged to promote development in the East as one of its priorities in the budget that just passed. The United States is already elping in this respect, and is ready to do more.

The U.S. Agency for International Development (USAID) will implement two major new projects over the next five years: the Sri Lanka Conflict Response Program and the Connecting Regional Economies program.

The Sri Lanka Conflict Response Program will implement governance and communication programs that support a resumption of the peace process to resolve Sri Lanka’s long standing conflict. The Connecting Regional Economies program will address the disparity in economic development between the North and East and the rest of Sri Lanka. This disparity is a major driver of Sri Lanka’s ongoing ethnic conflict. The program also offers a major opportunity for us to engage the private sector as a partner in our efforts through establishing public private partnerships.

In conclusion, there is no doubt that a peaceful solution to the conflict will enhance and encourage development for all Sri Lankans-be they Sinhalese, Tamil, Muslims, or others-living in this wonderful country.

This book positively focuses attention on the current roadblocks to greater equitable development. I personally look forward to reading it in-depth, and recommend it to policy makers here in Sri Lanka.

I congratulate you once again on this momentous occasion, and I wish you all a healthy, prosperous, and safe 2008.

UN Human Rights Monitoring Urgently Needed to Stem Violations

(New York, December 18, 2007)-The recent downgrading of Sri Lanka’s National Human Rights Commission (NHRC) by an international committee highlights the need for independent international monitoring of the human rights situation in the country, Human Rights Watch said today.

Recently the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights-the international body that regulates national human rights institutions-reduced Sri Lanka’s NHRC to the status of an “observer” because of government encroachment on its independence. As a result, the commission no longer has the right to vote in international meetings and is not eligible to stand for election to the international coordinating committee.

“Sri Lankan government claims that its Human Rights Commission is a strong and independent institution ring hollow,” said Elaine Pearson, deputy Asia director at Human Rights Watch. “Unfortunately, Sri Lanka lacks credible domestic institutions to address human rights violations.”

The international coordinating committee downgraded the Sri Lankan NHRC on two grounds: first, because of concerns that the appointment of its commissioners was not in compliance with Sri Lankan law, which meets international standards; and second, because of doubts that the commission’s practice was not “balanced, objective and non-political, particularly with regard to the discontinuation of follow-up to 2,000 cases of disappearances in July 2006.”

In May 2006, Sri Lankan President Mahinda Rajapaksa personally appointed five commissioners in violation of the Sri Lankan constitution. Article 41B of the constitution specifies that appointments to the NHRC can be made only after a recommendation from the Constitutional Council, a multi-party body established by the constitution.

The NHRC has failed to adequately address the hundreds of reported cases of new “disappearances” in Sri Lanka over the past two years. In a note dated June 29, 2006, the secretary of the commission said that it had decided to stop inquiring into these complaints “for the time being, unless special directions are received from the government.”

An internal NHRC circular dated June 20, 2007 imposed a maximum time period of three months in which complaints must be filed with the commission, even though no there is no such limitation in existing laws or regulations. More than three months after an incident, the commission will only investigate complaints at its discretion.

The need for independent monitoring of human rights has become more urgent since mid-2006, as human rights abuses against civilians escalated in line with increased fighting between the Sri Lankan military and the Liberation Tigers of Tamil Eelam. The NHRC has been absent and inactive rather than taking a proactive role in investigating these abuses and reporting its findings, Human Rights Watch said.

Given the failure of domestic institutions to address continuing human rights abuses by all parties to the conflict in Sri Lanka, Human Rights Watch again urged the Sri Lankan government to accept a United Nations field operation with a strong monitoring mandate.

“The commission’s lack of independence has reduced it to a mute witness of rising human rights abuses in Sri Lanka,” said Pearson. “To address the intensifying abuses by all sides in Sri Lanka’s war, the government should welcome a United Nations human rights monitoring mission.” [HRW Press Release]