Focus on Rights

The complaint by the Israeli Permanent Representative to the United Nations, Yosef Lamdan, in 1998 to the UN based Committee Against Torture (CAT), that Israel was being critiqued because it was "too honest" in describing how its law and order agents did their work, was relatively amusing.

Not surprisingly, the ten members of CAT, appointed to monitor the implementation of the UN Convention against Torture by state parties, disagreed. The members noted that "the state of insecurity that Israel is presently coping with, cannot justify practices amounting to torture". The colourfully aggressive response from Lamdan was that, among other things, that while his government continued to battle with the "agonizing dilemma" of terrorism, its report was being brought before CAT like "a lamb going to the slaughter". Israel was being held to a higher standard than other countries, he alleged, "because its government operations were more open than those of other states".

Sri Lanka is now increasingly adopting a similar stance in its attitude to the Communication of Views by another international rights monitoring mechanism, the United Nations Human Rights Committee in respect of individual petitions filed by Sri Lankans. State representatives are making the absurdly convoluted argument that if Sri Lanka had not signed the Optional Protocol to the International Covenant on Civil and Political Rights, it would not be called upon to account by the Committee in a manner that has now become extremely critical. In South Asia, only Sri Lanka and Nepal have signed the Covenant allowing individual citizens to appeal to the Committee against decisions of domestic courts.

And no doubt, the fact that yet another Communication of Views was made public last week would increase the laments in that regard. This sixth Communication, (in a string of similar decisions against the Sri Lankan State), was in respect of a nineteen year old Sri Lankan boy, Lalith Rajapakse who had been arrested and tortured by the police. The Committee found unlawful arrest and detention as well as the failure by authorities to investigate threats issued by police officers against the victim after he invoked the judicial process, (Lalith Rajapakse vs Sri Lanka, Communication No 1250/2004, 26 July 2006).

Interestingly, the delay in the conducting of the High Court trial against his torturers as well as hearing of the fundamental rights application in the Supreme Court was also censured by the Committee which found a violation of the state's commitment to ensure effective remedies to citizens of countries which have declared a commitment to the International Covenant on Civil and Political Rights. The State was obliged to ensure that the court proceedings in both the High Court and the Supreme Court are expedited, that the victim is protected from threats and/or intimidation and be given reparation.

The progress by the State on the actual implementation of such recommendations is painfully slow. In one case, the State has actually replied that it cannot give effect to the Committee's views in a matter where a sentence of contempt of court by the Supreme Court was itself found to be in violation of the Covenant. It will be useful to see as to how far such an obstructionist attitude will prevail.

Generally, there is no doubt that the degeneration of Sri Lanka's rights protection mechanisms has attracted no small attention internationally and regionally. In one regional forum pertaining to Human Rights Commissions of the Asia-Pacific region, which held its 11th annual meeting in Fiji last week, the appointments to the country's Human Rights Commission came in for questioning during a formal dialogue with Commissioners from all the countries in the region.

Attending these sessions as well as further post meeting discussions that took place between the Asia-Pacific Forum Secretariat and activists in the region, it was saddening for me to witness Sri Lanka's NHRC being classed with long malfunctioning human rights institutions such as Malaysia's SUHAKAM and Indonesia's KOMNAS HAM which have proved to be notoriously incapable of dissociating themselves from the government.

For the future, (given that the present status quo will not be easily corrected), if the current Commissioners refrain from perpetuating more monumental blunders such as the highly criticized decision not to inquire into a recorded number of disappearances lodged with their predecessor body, perhaps much of this negative image could be retrieved. For this, an active and apolitical commitment from the Commissioners is required. We have yet to see if this will be demonstrated, apart from spurious media statements.

Currently there are other dangerous overtones. As this country heads unrelentingly for yet another dark period similar to the eighties, the likelihood of democratic forces such as the media, the courts and activist movements resisting with the same courage evidenced back then, is slim. The killing of the seventeen aid workers in Mutur and recent threats issued against a senior officer of the police hierarchy who had been openly critical of the establishment are some very unsettling signs.

During the early months of this year, we saw a collective onslaught of the political establishment on constitutional safeguards that were met with only limited resistance. It is ironic now that Parliament would appoint a Select Committee to examine the perceived shortcomings in the 17th Amendment to the Constitution but yet not, take the effort, (together with the office of the presidency), to immediately put to right, the non-functioning of the Constitutional Council. Certainly the crippling of the CC owes nothing to lacunae in the 17th Amendment but is rather, the sole result of a concerted effort by politicians in that regard.

Put simply, Parliament remains collectively responsible in not forwarding the nomination of the remaining member agreed upon by the majority of the political parties not belonging to either the government or the Leader of the Opposition, for presidential appointment. It is clear that such a majority has been evidenced by the collective nomination of the TNA, the UPFA and the SLMC. Consequently, the Select Committee process can only amount to an exercise of the most colossal hypocrisy in defeating the very purpose of that same amendment which all parties are now apparently swearing to improve.

Greater responsibility lies in that respect on some parties rather than others. For example, the statements of the Janatha Vimukthi Peramuna (JVP) this week that it welcomes the sitting of the Select Committee rests oddly with its deliberate campaign to render the 17th Amendment non-efficacious by its insistence in making an independent nomination. And the opinion of the Attorney General that there is no right to make such an independent nomination given that the JVP was within the party ranks of the government when it was elected to power, has now been all but forgotton. Such a farcical Select Committee process should have been opposed tooth and nail by a credible opposition but the United National Party has, of course, lost its energy to vigorously dissent quite some time back. Inexplicably, it appears to be generally uninterested in regaining its lost status, excepting though, some lone voices within the party.

The problem is that while we vegetate, frog-like in our well of unreasoning apathy, content to take whatever the politicians design to hand out, the consequences of this degeneration becomes more marked day by day. The latest public servant to retire whose successor ought to have been nominated through an independent process by the CC is the Auditor General Mr SC Mayadunne. One of the last key public servants who has been unfailingly courageous in his efforts to improve the audit process of government institutions, his reports have been noted for their forthright nature in exposing corruption within government. Reports of the Auditor General on the post tsunami expenditure and on the wasteful and corrupt practices of numerous public sector institutions such as the Co-operative Wholesale Establishment (CWE) are just some few examples.

Mr Mayadunne's leadership in efforts along with civil society institutions to formulate a draft Audit Act along with constitutional amendments that would further strengthen the hand of the Auditor General is also notable. And it is unfortunate that his successor will be appointed at a time when the constitutional process of appointments is being disregarded.

At the minimum, it will be well if the office of the presidency considers the appointment of his successor with none of the unforgivingly lackadaisical carelessness that characterised many of the direct presidential appointments to the independent commissions months back. Hope, as they insist on telling us, does spring eternal in the human breast.