“Has protection of the minorities improved? What about those detained because they are suspected of having had links to the LTTE, without any evidence to that effect? What about the human rights of the Internally Displaced Persons (IDPs)?”_____________
By Basil Fernando
(August 23, Colombo, Sri Lanka Guardian) As some claims have been made about improvements of human rights in Sri Lanka, it may be useful to consider some basic criteria in judging human rights improvements.
There are many factors that determine the possibility of improvement of respect for human rights within a particular country. These factors are
1) Constitutional matters,
2) Other legislative matters,
3) Institutional matters,
4) Budgetary measures, and
5) Matters relating to some of the most ingrained violations of rights within the particular context.
Constitutional:
The constitution of Sri Lanka is the greatest obstacle to the achievement of human rights. The Executive Presidency has absolute impunity, power to dissolve parliament at any time after one year of election without following any procedure, virtually subordinating the parliament and the judiciary. This has undermined the separation of powers. The executive has monstrous power. There are no checks and balances. Even the limited attempts to bring some rationality into the constitutional process by way of a constitutional amendment (known as the 17th Amendment) have been abandoned. With the passage of time, this situation degenerates further and therefore instead of improvements what happens in the overall framework is further deterioration of rule of law and human rights.
Other legislative measures:
Have there been improvements of laws in a way to prevent the reoccurrence of past abuses of human rights? For example, Sri Lanka has a terrible record of disappearances. Now in many countries disappearances have been recognized as a separate criminal offence which carries serious punishments, heavier even than the offence of murder.
The United Nations have adapted a Convention against Forced Disappearances. Has Sri Lanka made a law which makes disappearance separate offense? In the Embilipitiya case where a large number of students were made to disappear, the only charge in which the accused were tried was kidnapping, due to lack of a penal offence of disappearances. Has this situation changed? Why has Sri Lanka not signed the UN Convention against Forced Disappearances?
Other legislative problems affecting the prevention of human rights offences adversely are the absence of a witness protection law and a contempt of court law.
The absence of a witness protection law prevents witnesses from coming forward to give evidence because they risk their lives if they were to come forward. Absence of a contempt of court law allows abuse of power by the judiciary because people can be punished for the alleged offence without guidelines laid down by law, and this creates a climate of fear among the lawyers and litigants. Such absence also intimidates the media who become afraid to report on many matters due to the fear of being prosecuted without a good reason.
During times of conflict, many laws are suspended and emergency laws and anti-terrorism laws take their place. Have such emergency laws and anti-terrorism laws been modified and only those regulations which are absolutely necessary under the present circumstances being maintained? These and other legislative measures necessary for prevention of the reoccurrences of past abuses need to be brought about if there is to be an improvement. Thus, in judging an improvement, there needs to be review as to whether such legislative changes are being brought about.
Institutional:
The realization of rights takes place through the institutional framework of the state. Among these, the following elements are of crucial importance.
Investigations into complaints of human rights abuses.
The most important aspect of the prevention of human rights abuses is the investigation into complaints. Investigations become possible when there is a regular machinery for receiving of complaints promptly, proper recording of complaints in books which are maintained authentically and supervised by higher authorities, and investigations being conducted into the complaints. Whether there is improvement in this area can be measured by answering the following questions.
A) Are the Sri Lankan cops perceived as having a better image now than they had before?
B) Are they perceived as having a greater discipline than before and that they are less corrupt than before?
C) Whether the system of command responsibility is better now than before? Are IGP, DIGs, SSPs and others considered to be men of greater integrity, capable of being independent and resisting political authorities and resisting the potential to be corrupt?
D) Has politicization, which has been recognized as the greatest impediment for institutional integrity of the policing system, been eliminated or reduced?
E) Are the Special Investigative Units (SIUs) functioning under the Criminal Investigation Division (CID) given the mandate and the powers for investigation into all serious cases of abuse of human rights and, thereby, have the allegations of subversion of inquiries through investigators who are biased being answered?
F) Have there been improvements in insuring the independence and the protection of all investigators?
G) Have there been serious measures taken to remove the past abuses relating to the tampering with police documentation?
H) Has the judicial authority of supervising and monitoring all investigations been restored and improved?
PROSECUTORIAL:
1) Has the independence of the prosecutor, which is the Attorney General’s department, been improved and obstacles to such independence by way of direct political interferences been removed? For example, in the case of 30,000 disappearances in the south, the prosecutions were prevented due to enormous political pressures. Do such pressures still exist or can the department on their own, purely on the basis of professional considerations, decide on the prosecution of cases?
2) Are there adequate staff and material resources for the department to carry out its work efficiently and promptly?
3) Has the department been perceived as completely independent and not in any way under the control of political authorities?
JUDICIAL:
1) Have the constitutional and legal barriers imposed on the independence of judiciary in the past been removed?
2) Has the restriction on judicial intervention made through emergency laws and anti-terrorism laws been removed?
3) Has the disciplinary process relating to the judiciary been improved and the publicly known past abuses, such as rewarding of some and the punishing of others on the basis of bias, being removed?
4) Has the perception of corruption which has been spoken about in reports by public interest groups and even by some judges themselves being addressed positively?
5) Have measures been taken to address scandalous delays relating to adjudication being addressed? Is it possible to ensure a speedy trial, which is a primary requirement of fair trial?
BUDGETARY:
1) Have adequate funds been allocated to ensure the proper functioning of all the institutions mentioned above for the purpose of ensuring proper administration of justice on all matters relating to human rights?
2) Recent years have shown enormous increases in the funding for military. Has there been an increase of funding for the administration of justice? The heads of institutions, such as the judiciary, the police and the Attorney General’s Department, have made regular complaints their past statements of being underfunded. Have these complaints been adequately addressed and funds provided so that these institutions will be able to do their functions?
Matters relating to the most ingrained violations in the country
What measures have been taken to deal with the most ingrained violations such as extrajudicial killings, disappearances, torture, maintenance of illegal places of detention, the creation of mass graves, the destruction of all material evidence relating to abuses, the most regular habit of fabrication of charges and prosecutions which are without any basis, depravation of legal representation, prolonged detention without trial and arrest by way of abductions and often without any reason, and many similar abuses? The issue is not whether the number of abuses has gone down. During conflicts, the number of abuses goes up. If that is to be stopped, then the causes of such abuses need to be addressed. Are there measures that have been taken to ensure such as change?
Has protection of the minorities improved? What about those detained because they are suspected of having had links to the LTTE, without any evidence to that effect? What about the human rights of the Internally Displaced Persons (IDPs)?
Any mature consideration on improvements assesses the above-mentioned factors. The issues mentioned above are not exhaustive. They are some of the basic factors. If even these factors are not being addressed, all claims of improvements are baseless and sometimes made deliberately to create a false impression.
-Sri Lanka Guardian
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