Some critical problems facing human rights protection in Sri Lanka

By Kalana Senaratne

(December 20, Colombo, Sri Lanka Guardian) Recently, the world celebrated the ‘Human Rights Day’, on 10 December. It comes to us, every year. It is a day that commemorates the anniversary of the adoption of the Universal Declaration of Human Rights. Various events, seminars and workshops are held, various programmes launched, on that day. There are advocacy programmes, awareness programmes, lectures and such kind. Nice stickers, well drafted pamphlets, are distributed. It is considered to be a special day.

But from the citizen’s perspective, all these things are of secondary importance. For the citizen, what matters, principally, is whether his/her rights are effectively protected; whether violations of his/her rights can be effectively investigated; whether the government is seen to be taking, and ultimately takes, action to improve the human rights protection standards in the country. In short, for the citizen, a ‘Human Rights Day’ is of relevance only if there are signs that concrete action is being taken to put things right in the human rights front.

Viewed from this perspective, the citizen’s perspective, the recently celebrated Human Rights Day should be of very little relevance, or significance, to Sri Lankans; simply because there are a number of serious problems concerning the protection of human rights, which are yet to be resolved. It seems to be taking a very long time to resolve these problems. This, in turn, also makes one question whether these problems are really ‘problems’ for the politician.

Some of these problems are as follows:

Sri Lanka and International Conventions: doubts about status

States ratify and accede to international conventions. This, which results in the entering into force of a convention, is one of the principal ways of ensuring that citizens will receive the benefit of human rights protection guaranteed under international human rights documents (the other most important way being the enactment of enabling laws to give effect to those international laws within the State, where necessary). But when there is confusion concerning the very act of ratification or accession, serious problems ensue.

In an article published by Groundviews a few months ago (‘On Sri Lanka’s Accession to the ICCPR Optional Protocol’), I raised the issue of the Optional Protocol (OP) to the ICCPR. There is confusion as to whether or not Sri Lanka is a Party to the ICCPR OP, which Sri Lanka acceded to in 1997; and whether or not citizens of Sri Lanka have recourse to what is provided for in the OP, i.e. access to the Human Rights Committee (HRC) in Geneva, enabling a citizen to send communications and obtain its views on alleged violations of human rights, upon the exhaustion of domestic remedies.

As pointed out in that article, this problem, this doubt, arose due to the judgment delivered by the then Chief Justice Sarath N. Silva, in the famous Singarasa case. The Supreme Court reached an alarming conclusion, holding that by acceding to the ICCPR OP, the HRC – which is comprised of independent experts entrusted with the power to issue only “views” - was conferred “judicial” powers, contravening the Constitution. The SC held therefore that Sri Lanka’s accession to the OP, in 1997, was invalid. It was a bizarre interpretation of the word ‘views’, which the SC believed to mean ‘judicial’ powers.

Today, one wonders whether this decision which struck down the OP came about due to some unnecessary and unjustifiable fear one had of the powers of the HRC; whether this was due to the fear one had in imagining that future decisions of the SC could have been overruled by the HRC. The HRC, it needs to be remembered, is no Privy Council or appeal court, that can overrule decisions of the Supreme Court of Sri Lanka. Why then did the SC go to the extent of stating that it had judicial powers?

So it is clear that the judiciary needs to take much of the blame for the position the State is in today. But since then, there has been little or no progress concerning efforts to resolve this problem. Since 2006, there has been doubt about Sri Lanka’s accession to the OP; there is doubt whether a citizen could approach the HRC. What then has the government done so far? Has the State renounced the OP? If not, what is the position? Should the government revisit the SC to obtain an opinion, a more correct interpretation of the words of the OP? Is it correct to remain silent on this issue?

International Law and Domestic Law: doubts about recognition

The Singarasa decision gave birth to another unfortunate problem.

One of the most fundamental issues concerning the effective implementation of international human rights conventions is the aspect of giving adequate domestic recognition to those human rights contained in international conventions. The State should ensure that international law is part of domestic law. There cannot be any doubt as to whether or not those rights contained in international conventions (to which Sri Lanka is a party), are also rights under domestic law; especially as regards civil and political rights of citizens.

In the Singarasa case, the SC held that the rights contained in the International Covenant on Civil and Political Rights (ICCPR) were not rights under domestic law, as nothing had been done to transform international law into domestic law. ICCPR rights are not rights under Sri Lankan law, the SC held.

But having said so, the very same Chief Justice Sarath N. Silva, changed his mind in 2008; when the SC opined (as per a question posed by President Rajapaksa under Article 129 of the Constitution) that Sri Lanka does in fact recognize the ICCPR rights, through constitutional provisions (of Chapter 3 of the Constitution), through other laws, and the ICCPR Act of 2007 (which does not cover all of the rights under the ICCPR). The SC also stated that these ICCPR rights are justiciable.

When this opinion was delivered, I did welcome it. One reason why I welcomed this was because I always felt that the Singarasa judgment was hopelessly wrong. It was also because I felt that the judicial approach, the pre-Singarasa approach, was a very positive one. But while I appreciated all this, I have not been able to appreciate the utter contradiction that this opinion signified, and the confusion that it could reasonably throw up. If, in 2006, in the Singarasa case, our judiciary had followed the pre-Singarasa approach, one that was adopted by the same court in previous cases (especially by the eminent late Justice Mark Fernando, in the case of Weerawansa v. AG in 2000, wherein he argued convincingly why international human rights law is part of domestic law), much of this could have been conveniently avoided.

But it was quite obvious that what the Court wanted to do in 2006, inter alia, was to ensure that the remedy that was afforded through the OP (i.e. the remedy being the ability to approach the HRC) was not possible because the rights (i.e. the ICCPR rights) - the violation of which makes it possible to obtain that remedy - were not rights under domestic law. So, one had to ensure that the ICCPR rights were not rights under domestic law. Hence, all this questioning by the EU and the rest about whether or not Sri Lanka gives adequate recognition to the ICCPR rights within domestic law.

Perhaps the following needs to be added as well, and this relates to the above issue about the OP.

In the Singarasa judgment, referring to the ICCPR rights and the remedy (HRC), the SC notes:

‘The maxim ubi Jus ibi Remedium postulates a right being given in respect of which there is a remedy. No remedy is conceivable in law without a right.’

Today, with the 2008 Opinion of the SC, which said that Sri Lanka effectively recognizes ICCPR rights, the question needs to be asked: what about the remedy? This should make it easier for the government, even the judiciary, to arrive at a solution.

‘Commissions of Inquiry’ and their ineffectiveness

There has never been a shortage of “commissions of inquiry” in Sri Lanka. News that a commission has been set up and that commissioners have been appointed, to look into a grave violation of human rights, an abduction, a killing, a massacre, are common. Inquiry or investigation, again, is again fundamental to ensuring the protection of human rights.

Unfortunately, the Human Rights Commission of Sri Lanka, a statutory body, is largely ineffective. This much is well known. And the ineffectiveness of this body has been pointed out by many, over and over again; by those who have not only been critical of this government, but also by those who have been supportive of the government and its war effort (by lawyers such as Gomin Dayasiri, etc.).

Some time ago, Kishali Pinto Jayawardena pithily noted that “the distaste that grips the public mind upon even hearing the term ‘commissions of inquiry’ is ‘palpable’”. Not only because they have failed miserably and have been ineffective over the years, I would think. But also because their ineffectiveness, which is also a result of politicization, sets a bad precedent, and ‘failure’ is written all over it whenever a new commission springs up. The people know it. The politicians know it. Even the commissioners realize it, before long.

And in this regard, the latest addition to a long list of such commissions of inquiry is the 2006 Special Presidential Commission of Inquiry that was set up to investigate a number of grave violations of human rights, headed by former SC judge, Nissanka Udalagama. It came to an abrupt end, not too long ago; after having spent so much time and financial resources into the setting up of the commission. In such a context, can we claim that our investigative mechanisms are functioning properly, effectively?

Appointment of commissioners: questionable?

And here, one needs to pen a few words on the issue of ‘appointments’, and question whether any serious thought goes in to this matter.

Perhaps, this point was not adequately highlighted before, but it is interesting to note that Justice Udalagama who headed the commission of inquiry was one of the 5 judges who held (or rather agreed with the judgment delivered by the then Chief Justice) that Sri Lanka’s accession to the ICCPR OP was void (in the Singarasa case) because the HRC in Geneva was conferred judicial powers, and also held that ICCPR rights are not rights under domestic law. It was therefore ironic that Justice Udalagama was later appointed by President Rajapaksa to head the Commission of Inquiry, the work of which was observed by the ‘International Independent Group of Eminent Persons’ (IIGEP). And the IIGEP was made up of eminent persons such as Justice Bhagwati of India and Sir Nigel Rodley of the UK, who were members of the HRC in Geneva! What sort of a message are we sending by such acts?

Maintain international standards: the wrong way

Then we come to the issue of ‘international standards’. It is in the background of such contradictory and conflicting practices that we strive to maintain international standards, especially with regard to human rights investigations and inquiries.

It is often claimed, by politicians and public officials alike, that the West has no moral right to preach human rights, to point fingers at us. As President Rajapaksa stated at the UN General Assembly, in September 2007, “Human rights have been an essential part of our great cultural tradition for millennia. It is therefore nothing new for us to protect human rights”. I do accept this argument, and have written about it too.

The fact that there are human rights violations in the West, and that there are serious problems those countries are facing in the protection of human rights, is known, and is documented by many organizations around the world. But the question that is of relevance to Sri Lanka, today, is not that. The question that we should be asking ourselves now is this: while the West may not have a moral right to point fingers, while there may be nothing new for us in protecting human rights, do we, in turn, have a moral right to claim that we are ‘better’ than the West, in terms of protecting human rights? Today, it is an affirmative answer to this question that Sri Lanka needs. But that answer is not so close to us, at this moment.

Consider for instance the following: having informed the ‘international community’ that there is nothing new for us to protect human rights, we are seeing to be coming up with wasteful innovations and attempts to show the world that we strive to maintain international norms and standards; which shows, quite clearly, that we have little confidence in our own mechanisms and procedures. The principal example being the above mentioned IIGEP - appointed to observe the investigations and inquiries conducted by the Udalagama-Commission of Inquiry. The eminent persons resigned, the IIGEP was a flop, even the commission.

Yet, how does the appointment of an international group of eminent persons suggest that there is conformity with international norms and standards? And what of international norms and standards, when there is doubt about whether or not Sri Lanka effectively recognizes rights contained in the ICCPR? When there are doubts as to the status concerning the accession to the ICCPR Optional Protocol? When there are doubts as to the effectiveness of the country’s commissions of inquiry? And, most alarmingly, when the very commissioner who headed the commission was a judge who had held that the ICCPR rights are not rights under domestic law?

Conclusion

These are then some of the critical problems facing us. We need to ensure that international laws are adequately recognized, and are justiciable, within the State; that there are no doubts about Sri Lanka’s ratification of, or accession to, international conventions; that the basic mechanisms which provide for the investigation of human rights violations are properly and effectively functioning. There also needs to be serious debate and discussion, in Parliament, about these matters concerning the signing and ratification of treaties. This, unfortunately, does not seem to be happening.

One need not think too much to appreciate the seriousness of the issues raised above. Consider, for instance, the problems faced by a prospective investor when he finds that there are no proper investment protection laws in a country he wishes to invest in. He decides not to invest, and if he has already invested, he would take steps to move out, pack up and leave. Consider now the nature and the gravity of the problems faced by a citizen who finds that his basic human rights are not adequately protected, even recognized, within the State. He cannot afford to leave, just like the wealthy investor did. He simply cannot.

The list of issues highlighted above is not an exhaustive one. The problems relating to the police and numerous other issues have been left out. But the above are fundamental problems. These problems are the most rudimentary problems that need to be corrected in any country. Until such problems are corrected, the entire human rights discourse in Sri Lanka would rest on a very shaky and unstable foundation. What happens if one decides to erect a building on such a foundation is quite obvious to anyone.

(This is an edited version of an article which will be published in a forthcoming edition of the SPECTRUM Magazine).

-Sri Lanka Guardian