Focus on Rights

Given the Sarma case and the good precedent that it provides, these two thousand cases spurned by the HRC should be taken out of the domestic forum and put before an international tribunal. In so doing, this most extraordinary explanation of Sri Lanka's HRC as to why it cannot look into these cases itself should be put in the forefront. No doubt, such extreme eccentricities would also make most enjoyable discussions when the periodic time comes for state representatives to make their customary pleas that this country is conforming to international human rights obligations before the UNHRC.

There has been a studied silence from the offices of what is now referred to as Sri Lanka's "National Human Rights Commission" (HRC) following last week's newspaper reports that its Board had decided to stop inquiring into complaints of over 2000 disappearances of persons in the past.

To recollect; an extremely novel reason had been advanced by the Board for the stopping of its inquiries; viz,"for the time being, unless special directions are received from the government." As taken verbatim from the note of the Secretary to the HRC dated 29.6.2006, this is due to the fact that "the findings will result in payment of compensation, etc." What is encompassed by the category comprised by "etcetera" is, of course, anybody's guess though this does not leave much to the imagination.

But the barefaced audacity that this assertion implies on the part of a body, professing itself to constitute a primary human rights monitor in the country, would have raised the hackles of the public in any country in this region other than, (of course), Sri Lanka.

For example, I can well visualise the ferocious reactions on the part of the Indian and the Bangladeshi activists if such a scenario had occurred in those countries. For that matter, the Nepali people are now holding out significant lessons for us in the spirited defence of their democratic freedoms. But as far as Sri Lanka is concerned, this steady deterioration of even the minimum rights safeguards that had been painstakingly put into place in past years, appears to take place without much ado. We are eminently suitable to class ourselves in the category of such lapsed human rights commissions as Malaysia's SUHAKAM, to name one example only.

But let us look a bit more closely at the background to this decision of Sri Lanka's HRC. It is quite clear that the inquiry into the disappearances being referred to in that context had been brought within the work of the Commission at a point prior to the present commissioners assuming office. Indeed, by a Board Paper submitted to the HRC on 15th December 2004, the then Commissioners had approved the establishment of a unit to process some 16, 305 complaints, received by the old Presidential Commissions of Inquiry into Disappearances but left unattended due to limitations in their mandates.

This Board approval was consequent to the Sri Lanka's Peace Secretariat's suggestion in October 2004 that some kind of mechanism be set up to look into the cases of disappearances left over by the previous Commissions.

At that point, discussions had been initiated by the Secretary to former President Chandrika Kumaratunge, as to how best these inquiries could be conducted. Rather than another new Commission being set up for this purpose, it was agreed that the HRC should conduct inquiries into these cases as well as a number of disappearances recorded from the International Committee of the Red Cross (ICRC). Consequent to this agreement, official approval was obtained to retrieve the list of 16,305 complaints from the National Archives to which the Presidential Commission had deposited this list.

Thereafter, with donor funding the HRC had embarked upon inquiries into the reported disappearances, which were reduced to some two thousand complaints after exhaustive investigations during 2005 and part of 2006. It was the hearing of these two thousand complaints that the present Commissioners had, (for stated and unstated reasons best known to them), decided to jettison until "directions are received from the government."

This sequence of events should not put to shame the current Commissioners of the HRC for that is vastly too ambitious (if not inherently impossible) an objective. Rather, it should put to shame, the many number of organisations in the country campaigning on the issue of disappearances and the need for closure on their pain for the relatives and loved ones of victims. This issue needs to be taken up by them as a matter of the highest priority, both nationally and internationally. And the questions raised therein are profound.

Some of these questions are obvious. From the information now made public, the HRC had been conducting inquiries for well over a year into these recorded complaints of disappearances. In that regard, what of the raised expectations of those persons interviewed by the officers of the HRC who would now expect some kind of definitive response to their efforts for relief? Are they expected to simply shrug their shoulders and turn away? On the contrary, it is precisely this kind of festering anger and frustration that defeats any attempts at so called attempts to heal the pain of decades and bring about a new culture of hope for the Sinhalese, Tamils and Muslims affected by civil and ethnic conflict.

All this contributes to the climate of impunity that prevails regarding past disappearances. This culture needs to be displaced now more than ever given the threat of imminent war and the consequent possibility that the old abuses may recur. One good possibility is for these two thousand cases, (that the HRC now refuses to hear without the government nod), be taken directly to the United Nations based Human Rights Committee (UNHRC), if the pleas of the victims for domestic justice continue to fall on deaf ears. In the decision of Sarma vs the Sri Lankan State (CCPR/C/78/D/950/2000: Jurisprudence, Sri Lanka, 31/07/2003) the United Nations Human Rights Committee found against the government in a complaint filed by a father from Trincomalee, whose son disappeared in army custody in 1990.

The complaint was filed under the Optional Protocol to the International Covenant on Civil and Political Rights, by which citizens can appeal to the Geneva based UN body against the decisions of domestic courts in violation of Covenant rights. Appeals can also be lodged against state actions in violation of Covenant rights for which there is no effective national remedy.
The UNHRC declared that the rights to liberty and security and freedom from torture of the victim had been infringed. Interestingly, violation of the right to freedom from torture or cruel, inhuman and degrading treatment or punishment was found in respect of his parents as well, who, the Committee opined, had suffered 'anguish and stress" by his disappearance and by the continuing uncertainty concerning his fate and whereabouts.

The State was directed to expedite current criminal proceedings against individuals implicated in the disappearance and to ensure the prompt trial of all persons responsible for the abduction. It was also put under an obligation to provide an effective remedy including a thorough and effective investigation into the disappearance, his immediate release if he is still alive, adequate information resulting from its investigation and adequate compensation for the violations suffered by him and his family.