federalidea.com

By Dr. S. Narapalasingam

A democratic government that exercises the sovereign power of the people on their behalf has the responsibility to safeguard the rights and freedom of all citizens. The people too have responsibilities to their country and the entire society. The government’s responsibility is wide and specific. It is responsible for the unity, peace, development of all regions and the well-being of all citizens. Good governance, social justice and the rule of law are also its responsibility. Moreover from the standpoint of good international relations which are also essential for the welfare of the country, the government’ responsibility extends beyond its own territory. The difference between the democratic governance in politically stable countries like UK and shaky Sri Lanka lies basically in the lack of responsibility and concern of elected governments in the aforementioned areas. The former has no written constitution but no government tried to undermine minority rights, the Rule of Law and the democratic system. Since independence in 1948, Sri Lanka had three different constitutions for adopting democratic system of governance. But the basic political problems continue to remain unresolved hindering the unity and progress of the country.

Fundamental Rights in Sri Lanka’s Constitution

Chapter 1 of the present Constitution of the Democratic Socialist Republic of Sri Lanka states, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the power of governance, fundamental rights and the franchise”. In the same chapter Article 4(d) states, “the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government, and shall not be abridged , restricted or denied, save in the manner and to the extent hereinafter provided”. Chapter 3 deals solely with Fundamental Rights. The main fundamental freedoms and rights enshrined in approved international conventions such as the European Convention on Human Rights are also in Articles 1 to 14 of the present Constitution. Briefly, these include Freedom of thought, conscience and religion; Freedom from torture; Right to equality; Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive legal legislation; Freedom of speech, assembly, association, occupation, movement.

The remedy for the infringement of fundamental rights by executive actions is stated in Article17. “Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under provisions of this Chapter”.

Restrictions to fundamental rights specified in Article15 which has 8 sub-clauses are crucial in this study. These withhold the rights specified in the Constitution in those cases stated therein. All that is required is for the government to enact temporary/ emergency laws in the interests of national security or other reasons specified in the Constitution. Thus, fundamental rights may also be denied by temporary law in the interests of racial and religious harmony or national economy or in relation to parliamentary privilege, contempt of court, defamation or incitement to offence. Each sub-clause in Article 15 relates specifically to those freedoms and rights specified in each of the preceding Articles. The ‘law’ in such cases “includes regulations made under the temporary law”. ‘National security’ has been often cited to justify the emergency laws.

Human Rights situation

Like other guerrilla groups, the LTTE showed no respect for the rights and freedom of civilians. The rebel leadership wanted the people to accept their views and obey their orders. Any dissenting Tamil was branded as a traitor to the Tamil cause. The moves to suppress dissent by the present government are similar to those of the militants operating outside the existing laws and established code of conduct. Some may feel terror must be defeated using the same brutal methods disregarding all laws and human rights. They ignore the fact that many victims in the present ‘war against terror’ are innocent civilians. Those who express dissenting views on civilian killings, abductions, ‘disappearances’ and intimidation by security personnel, paramilitaries and thugs operating with the backing of influential members of the government are considered to be LTTE supporters!.

[HRW Video: Sri Lanka's Ghosts]

The Human Rights Watch (HRW) report issued on 6 March 2008 on the widespread abductions and ‘disappearances’ in Sri Lanka blamed the government for allowing the unlawful practices to escalate into a ‘national crisis’. The 241-page report, “Recurring Nightmare: State Responsibility for ‘Disappearances’ and Abductions in Sri Lanka,” has also examined the Sri Lankan government’s response to earlier accusations, which the HRW finds them grossly inadequate. It is the culture of impunity that emerged from government’s irresponsible actions and inaction that is threatening the rights and freedoms of the majority of citizens.

HRW has said: “Not a single member of the security forces has been brought to justice for involvement in ‘disappearances’ or abductions”. It also said that Sri Lanka’s emergency laws, which grant the security forces sweeping powers to arbitrarily arrest and detain people without being held to account, have facilitated enforced disappearances. The special bodies set up by the government for monitoring and investigating ‘disappearances’ and other human rights violations have been ineffective. HRW has said this failure is not surprising since at the highest levels, the Sri Lankan government continues to downplay the problem, denying the scale of the crisis and that its own security forces are involved.

HRW has also deplored the Sri Lankan government’s opposition to an international monitoring mission, given that such initiatives have proven effective elsewhere in dealing with ‘disappearances.’ With sufficient mandate and resources, the monitoring mission could achieve what the government and various national mechanisms have failed to do. Elaine Pearson, deputy Asia director at HRW is reported to have said: “The Sri Lankan government’s rejection of a UN monitoring mission reflects badly on its commitment to human rights.” If the government is not responsible for human rights violations, why is it objecting this proposal, when it too does not deny there have been serious violations? The Sri Lankan government has dismissed the HRW report as biased and untrue. Earlier reports by visiting UN missions critical of the government have also been rejected.

Among those who dismissed the HRW report as biased is the Secretariat for Coordinating the Peace Process (SCOPP). The latter in a Press Release 7 March 2008 stated: “The mandate of the Secretariat to pursue peace remains however and this must be exercised in accordance with the principles and policies of His Excellency the President, to whom, along with the people of Sri Lanka whom he represents, the Secretariat is responsible”. Since there is no peace process but only some other process now under His Excellency’s leadership, the Secretariat is presumably coordinating the latter according to the principles and polices of the supreme leader. When the real process begins it must not proceed according to the whims of one person. Sincere proposals for reasonable political settlement are essential here. The government has been dodging this imperative. Importantly, there must be an associated process of national reconciliation to achieve lasting peace. The SCOPP’s hurried response reveals manifestly Sri Lanka’s political ethos that helps not only those at the top of the power structure but also those who back unreservedly the almighty leadership.

The US State Department Report on Sri Lanka has dealt with actions of all parties that violated human rights following the renewed hostilities between government forces and the LTTE early 2006. The Report says: “The overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils.” The role played by Tamil Tigers and Tamil paramilitary groups allied to security forces in the abhorrent deeds has also been exposed. The report blames the Tamil Tigers for bombing civilian shoppers in a Colombo suburb and civilian buses in the south. Nevertheless, the harsh comments on government’s role in creating the calamitous human rights situation hurt the Rajapaksa regime. The Foreign Minister Rohitha Bogollagama on the instruction of the President, summoned US Ambassador Robert O’ Blake to express Government’s contentions. A statement issued by the Foreign Ministry after the meeting quoted Minister Bogollagama’s retort to Blake. “The report presents a distorted version of the actual situation in Sri Lanka and is unfortunately a litany of unsubstantiated allegations, innuendo and vituperative exaggerations.” Within hours the US Embassy in Colombo hit back with the statement which said, “The US Government stands by the report.”

A statement issued March 18 at the end of a three-day visit by a six-member group representing the European Union’s current president Slovenia and future president France, as well as the European Commission and the EU Council of Ministers stated that EU has “very serious concerns” about reported human rights abuses in Sri Lanka. The EU group also condemned alleged rights breaches by the Tamil Tigers. Speaking at a media conference at the European Commission (EC) office in Colombo on Mar 18, the EU representatives reiterated their concern over the human rights situation in Sri Lanka and said that “they were looking forward to an ambitious final peace proposal by Sri Lanka during the coming months”. The EU group also noted with concern that the Independent International Group of Eminent Persons (IIGEP) has decided to terminate its work with the Presidential Commission of Inquiry (CoI) because, in the IIGEP’s view, the CoI does not meet international standards. The EU believes that “the IIGEP, which includes four Eminent Persons from Asia with Justice P.N. Bhagwati, former Chief Justice of India as head, has performed its functions with professionalism and impartiality”. The EU recognized Sri Lanka’s sovereign right to decide its own approaches but underlined the seriousness of the IIGEP and UN High Commissioner for Human Rights decisions. The need to consider their recommendations seriously and to have effective and independent human rights’ monitoring was emphasized.

The group’s statement also reminded Sri Lanka about the Generalised System of Preferences plus-scheme (GSP+) which is benefiting Sri Lanka. “All countries wishing to continue benefiting from GSP+ will have to re-apply by October.” The application will be considered according to objective criteria. This meant the human rights situation could have an impact. Attention was drawn to “the linkage between trade preferences and human rights clearly spelled out in the legal provisions of the agreement”. The visiting EU team wanted to visit Wanni but the Government of Sri Lanka asserted that it was not possible to provide immediate access owing to the prevailing security situation there which is under attack by the military. The government holds the view high-profile visits to Kilinochchi are useless. According to a press report March 20, the President has said, “Sri Lanka is now a rich country. We don’t need any concessions from the EU”!

In a move to discredit the US State Department’s country report for 2007 on Sri Lanka, the Foreign Ministry said that the ICRC had “confirmed a distinct downward trend in disappearances and unexplained killings during the second and third quarters of 2007″. In a press release March 19, Jacques de Maio head of operations for South Asia of the International Committee of the Red Cross (ICRC) clarified: “Extra-judicial killings and disappearances are part of a terrible pattern of abuse in Sri Lanka, which must be stopped.” The statement deplored “the Government of Sri Lanka for making misleading public references to ICRC’s confidential findings on “disappearances and unexplained killings,” and for disclosing that U.S. embassy also had access to the confidential reports.” The statement explained that ICRC has an international mandate to protect and assist the victims of armed conflict and other situations of violence around the world and, in its capacity as an exclusively humanitarian organization, it does so in a strictly neutral and impartial manner. On the extra-judicial killings and ‘disappearances’ it said: “The ICRC strives to stop these through its confidential and direct dialogue with the authorities concerned. For this reason, we prefer not to enter into a public debate on the number of disappearances in Sri Lanka.” Incidentally, the acknowledgment of downward trend in rights violations does not refute the fact that serious violations occurred in 2007.

Media under siege

Although journalists have been hounded and attacked earlier, the attacks on media personnel reached climax on 27 December 2007 when the thugs accompanying the Minister of Labour Mervyn Silva entered the State owned Sri Lanka Rupavahini Corporation (SLRC) to assault the News Director T.M.G. Chandrasekara. The violent scenes of the real drama were telecast live. People were able to grasp the culture of impunity responsible for the rise in lawlessness. The moves to intimidate journalists continued even after this obtrusive incident.

The Free Media Movement (FMM) in its latest statement said: “Not a single thug who accompanied MP Mervyn Silva has been brought to book. Not a single investigation or disciplinary hearing on MP Mervyn Silva has been conducted. Promises made by the SLFP Central Committee to hold the alleged deranged MP accountable for his actions have not borne any fruit. The Police have yet to even question the Minister. Enjoying the spoils of the proximity to absolute power, the MP is free to do as he sees fit while journalists today are under threat and in fear for their lives from criminal and underworld gangs in the service of the Minister.” Several violent incidents linked to the one started on December 27 by the Minister have drawn worldwide attention. 6 journalists were murdered last year. Sri Lanka is considered by some as another country not safe for journalists.

There have been some arrests of journalists unrelated to the SLRC incident. The Sunday Times March 23 reported their columnist J. S. Tissainayagam, “continues to be detained by the Terrorism Investigation Division (TID) for the 15th consecutive day without any explanation for his arrest. Along with him, B. Jasiharan, a Tamil nationalist writer and owner of a printing press which also housed the office of Mr. Tissainayagam, is also being detained along with his wife”. The columnist Tissainayagam, a political science graduate with a post-graduate degree in International Relations in his fundamental rights petition to the Supreme Court has said that he is being held for some undisclosed reason and “his fundamental rights have been violated and that the said conduct/actions and /or inactions of the respondents constitute administrative and executive action and entitles him to invoke the jurisdiction of the Court under Article 17 read with Article 126 of the Constitution”. Besides working as a columnist for The Sunday Times, he developed a website “Outreachsl” with financial support largely from a German-based organization called “Facilitating Local Initiatives for Conflict Transformation” (FLICT). The International Federation of journalists (IFJ) and its affiliates, the FMM, the Federation of Media Employees Trade Union (FMETU) and the Sri Lanka Working Journalists’ Association (SLWJA), as well as the Sri Lanka Muslim Media Forum (SLMMF) and Sri Lanka Tamil Journalists Alliance (SLTJA), demand that the authorities make transparent the reasons for the arrests and follow due legal process.

The FMM on March 18 condemned the ransacking of the home of journalist couple Sashi Kumara, a television journalist and Sunethra Atugalpura, a political reporter on March 6 as an act of intimidation. The FMM statement said: “It is the duty of the Government to take immediate steps to create an environment conducive for media practitioners to perform their duty without fear of retaliation. As far as the culture of impunity reigns there will be no end to intimidation of media in Sri Lanka. The Government has willingly or unwillingly failed to establish the rule of law in any single attack on media. FMM is compelled to say that what the country needs today is not presidential statements saying that the country is overflowing with media freedom, but the rule of law”.

In a statement, following a four-member gang allegedly attempting to harm the journalist Priyal Ranjith Perera, the Assistant director News camera, SLRC on February 27 while he was at his residence in Pita Kotte, the FMM said: “The FMM notes with dismay that this is the third and fourth confirmed cases of journalists who have been threatened or attacked after standing up to the thuggery of MP Mervyn Silva”. He was involved in videotaping the infamous incident on December 27, 2007 The other journalist whose residence was visited the same day by a suspicious group on motorcycles “had published critical stories on minister Silva’s intrusion into SLRC” Fortunately, he was not at home when the group came.

The International Federation of Journalists (IFJ) sent a joint letter on March 27 to President Mahinda Rajapaksa voicing the concerns from over 30 journalists’ associations and press freedom and human rights organisations across the globe for the safety of Sri Lankan journalists. The letter demands an immediate change in the escalating culture of violence against journalists. It is said to be the first of a series of actions for the ‘Stop the War on Journalists’ campaign. A global day of action has been called for April 10, 2008. IFJ Asia Pacific Director Jacqueline Park said “Sri Lanka has long been considered one of the most dangerous countries in the world for journalists, but the situation is becoming ever more serious.” The IFJ represents over 600,000 journalists in 120 countries.

The joint letter refers to the meeting the President had with SLRC executives and union representatives, the continuing harassment of journalists and their families and the appointment of retired Major General Sunil Silva to a top managerial post in SLRC. All incidents of attacks, harassments and threats involving journalists in Sri Lanka since the beginning of 2008 are listed in the letter. Earlier March 21, Joel Simon, Executive Director of the Committee to Protect Journalists (CPJ) revealed some specific concerns of the media community in the draft letter to the President. There is skepticism amongst journalists on the fulfillment of the promise given by the President at the meeting with Rupavahini staff at Temple Trees to investigate the unusual series of attacks on their fellow members. Minister Mervyn Silva, who was summoned to the meeting by the President, denied any hand in these incidents. ‘The Island’ in its March 19 editorial said the President’s meeting at ‘Temple Trees’ with the aggrieved Rupavahini employees had the trappings of a trial by the Executive.

The appeal to extend the investigation to other incidents involving journalists and/or their families may also be ignored. The CPJ Director has specifically mentioned: (1) The assault on the family members of Tamil journalist Maunasami Parameswary in their home on 14 March 2008 by an unidentified group. A former reporter for the weekly Mawbima, which was forced to close after carrying reports critical of government activities, Parameswary was detained for four months without charge or trial under the Prevention of Terrorism Act. Her release on 22 March 2007 came shortly after she petitioned the Supreme Court to declare her detention illegal. (2) The detention of journalist and editor of the Website ‘Outreachsl’ J.S. Tissainayagam and N. Jasiharan, a printing press owner and his wife since March 7. Tissainayagam, who sought to present Tamil concerns and Tamil culture in his reporting, was a known critical voice.

Incidentally, Susanthi Thambirasa who was arrested along with her friend Parameswary near Savoy Cinema in Wellawatte on 23rd November 2006 was freed by the Colombo Magistrate Court on 27 March 2008. At the time of her arrest, Susanthi was a relief announcer at the Sri Lanka Broadcasting Corporation and also worked at Sunera Foundation, an NGO.

Apparently, many local journalists think that the top post in Rupavahini was specially created for the former military commander Major General Sunil Silva. According to local press reports, “Silva’s appointment will logically give Rupavahini journalists pause before reporting any news that might upset the Sri Lankan government”.

The International Covenant on Civil and Political Rights (ICCPR)

The preamble to the Covenant (ICCPR) states that it is in accordance with the principles proclaimed in the Charter of the United Nations, giving recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family which is the foundation of freedom, justice and peace in the world. It also recognizes the Universal Declaration of Human Rights. Article 1 of the ICCPR recognizes the right of all people to determine their political status and freely pursue their economic, social and cultural development. Article 2 states: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 9, inter alia, states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”.

Sri Lanka is a Party to the ICCPR. President referred the ICCPR Act to the Supreme Court for consideration, whether the provisions therein were fully adhered to within the legal and constitutional framework of Sri Lanka. A five-judge Bench heard the arguments on March 17. The Island on March 19 published a brief report on the main submissions made by the lawyers. P. A. Ratnayake PC, who appeared for the Attorney General, said: “The fundamental rights chapter, the statutes and the common law of Sri Lanka, guarantees human rights, in all respects. He explained that Equal protection Rights are made justiciable through the Courts, the Human Rights Commission, is bound to report to the President and the Parliamentary Commission for Administration will report to the Parliament. Self determination and Sovereignty in the people are enshrined in the Constitution. Chapter (3) of the Constitution provides for right to life. In Sri Lanka no person could be punished with death except by an order of a Court. Article 11 of the Constitution prohibits torture. Issues such as slavery have been abolished since 1844. Arrest without warrant is permitted only under very special circumstance. A reason for the arrest should be told according to the criminal procedure followed in Sri Lanka. Freedom of movement, expression and franchise are enshrined in the Constitution, through fundamental rights.”

As mentioned earlier in this paper, the core problem in Sri Lanka is the wide divergence between what is officially written or pronounced and their adherence in practice. The work of official Commissions and Committees appointed to look into the abuse of power by state officials have been hampered by various drawbacks in the politicized system. Recent reports indicate key witnesses in the Commission of Inquiry (CoI) have been threatened. They have been warned of dire consequences if they divulge the truth. If and when the reports are made public (usually after long delay), the findings and recommendations remain dormant without any serious follow-up. Some occasions lame excuses are given as seen recently in the government’s stated position that there are no restrictions on media because the government has not imposed any press censorship!

The Island report also stated: “Constitutional expert Dr. Jayampathy Wickramarathne referred to seven inconsistencies between the Sri Lankan Constitution and the ICCPR. Among them he referred to the derogation limited in the Constitution, and the non derogatory state in the International Convention, even in terms of public emergencies. In the Sri Lankan Constitution, Article 15 (7) restricts fundamental rights, for public order, health, and morality.” Attention has been drawn earlier to this Article which states: “The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13(1), 13 (2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society”. The irony is the decision-makers are mostly egoistic power greedy politicians whose idea of “morality” and commitment to “general welfare of democratic society” are questionable. Dr. Jayampathy Wickramarathne also explained that if fundamental rights are violated by the existing law in Sri Lanka, there is no remedy. He also referred to the immunity vested in the President under Article 35. There are also some close to the President whose decisions have his full upport. If the President accepts responsibility for these then they too can indirectly benefit from this immunity?

What is important here is not whether the existing laws and declarations in principle conform to the various provisions in international covenants ratified by Sri Lanka but whether in practice these are being observed. What matters in the end are the ways people are treated and the rights and freedoms they really have under the political system. An objective review will also tell to want extent the system is functionally democratic. Given the fundamental drawbacks in the present system only those having neither special interest nor the obligation to uphold it can give a realistic judgment.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]