Holding the nhrc and the npc to a stricter rights accountability

By Kishali Pinto Jayawardena

The new year has dawned and we are not closer, (to all intents and purposes), to seeing the re-establishment of the Constitutional Council or the revitalisation of the 17th Amendment to the Constitution, despite the brave promises of the Government when appointing a Parliamentary Select Committee for this purpose many months back.

Indeed, the Government appears to have been stricken with a vastly convenient amnesiac attack regarding these promises which, if I remember right, had a definite time line tagged onto it, at that time. Meanwhile we are entertained at various times by pronouncements by the Select Committee, including a gem of a statement three months back that it was planning to seek the views of the Judicial Services Commission (JSC) in order to ascertain as to how to best improve the method of constitution of the JSC.

Meanwhile also, quietly (if not a trifle furtively) new appointments are apparently being made by the President to these formerly 'independent commissions." A specific analysis of these new appointments will be made at a later point of time in this column. Suffice to say for the moment, that the 17th Amendment to the Constitution has been conveniently forgotten by the Government. This is, of course predictable, considering the open pronouncements by key ministers and indeed, by President Rajapaksa that this constitutional amendment was posing an obstacle to the functioning of the government and should be done away with or negated in practical terms.

But apart from the government, the complicity of a gorgeously inept opposition in this amnesiac process should draw the strongest condemnation. From a different but crucial public interest perspective, the media, activists and indeed, the very public itself also appear to have cast these intricacies of constitutional governance to the winds in the face of more immediate dangers concerning the intensification of the war and restrictions of basic freedoms by emergency regulations.

This is, of course, a crucial mistake. Out of these formerly 'independent commissions', two, namely the National Human Rights Commission (NHRC) and the National Police Commission, (NPC) are vital actors in the protection of the rights of ordinary people. If we should forget for a moment that these bodies have been unconstitutionally constituted, (which process is continuing), the question as to whether these two commissions, are adequately fulfilling their tasks becomes pertinent. This question ought to be repeatedly asked by those of us who profess to be involved in bringing about accountable governance.

This is a question that is all the more important in the context of the ongoing public exuberance in the appointment of a Commission of Inquiry to probe selected recent cases of disappearances, extra judicial killings and abductions in Sri Lanka. The sleight of hand performed by the Government in putting this Commission (aided as it is supposed to be by a team of international observers) as the primary focus and thus shifting attention away from the due functioning of the 'normal" rights protection monitors such as the National Human Rights Commission, is unbelievable. Such unreservedly clever manipulation would have been exposed to justifiable public ire in any other country in South Asia than in Sri Lanka.

Let me proceed to explain this point somewhat further. Quite apart from all the deficiencies in its mandate and indeed, the very law in terms of which it is set up, this Commission of Inquiry is a fact finding body that will limit itself to inquiring into identified cases. It will do so during the time period of one year, notwithstanding the recent assurances of the Minister of Human Rights, that its term could be extended if it is so needed. Even if this body performs miraculously well, (thus confounding the predictions of the cynics who dismiss the exercise as being just another experiment in delaying international censure), this will by no means, be the end.

Its actual impact will only be manifested when those who have been identified by the Commission as responsible for specific violations are prosecuted and brought to some measure of justice. Equally so if, as a result of their work, pressure is brought to bear on the substantial reform of the country's criminal justice system, leading to, among others, the establishment of an effective witness protection system, the following of good prosecutorial strategies including the setting up of an independent prosecutor for extraordinary crimes and rights violations. It remains only to add somewhat acidly by a process of circuitous logic, that if we had all these elements in our system in the first place, then we would have had no need of any special Commission at all.

But to return to the point of these writings, the functioning of this special Commission cannot detract from the constitutional/statutory responsibilities vested in bodies such as the NHRC and the NPC in respect of rights protections. The NHRC has, of course, the general burden of investigating complaints by victims and pronouncing its findings in that respect. And the question is whether the NHRC has taken specific action to investigate or examine the patterns of extra judicial killings and abductions in the recent months except to engage in the most cosmetic of inquiries? It is ironic that it concerns itself more with looking into mundane cases of deprivation of promotion and the like in public service rather than focus on what has become an actual deprivation of life for some who have appealed to the NHRC for relief.

And now, let us come to the NPC. The constitutional duties of the NPC include, in the first instance, the appointment, promotion, transfer disciplinary control and dismissal of police officers other than the IGP. This is a task in which the NPC appears to have enthusiastically immersed itself, judging from its recent activities. However, Article 155G(2) of the Constitution also requires the NPC to establish meticulous procedures regarding the manner of lodging public complaints against police officers and the police service. The NPC has a duty to recommend appropriate action in law against police officers found culpable in the absence of the enactment of a specific law whereby the NPC can itself provide redress.

Such Complaints Procedures would include detailing the persons who can complain, the way it is recorded and archived and the way in which it is inquired and investigated. Similar procedures in other countries require the OIC and his superior officers to automatically report categories of grave incidents to the monitoring body, whether a complaint is made or not.

Such Public Complaints Procedures have, however, not yet been established. In their place, some district co-ordinators (mostly retired policemen themselves), have been appointed to look into complaints. However, what is required is not ad hoc consideration of complaints where the complainant is left to the mercy of an individual NPC officer but the prescribing of uniform procedures in this regard. In any event, we have yet to hear of any action actually taken by the NPC in respect of any of these complaints.

There is no doubt that special commissions notwithstanding, both the NHRC and the NPC should be made accountable to a stricter performance of their constitutional and statutory duties in respect of the many rights violations that individuals living in this country are now liable to face. In the alternative, these bodies will become farcical entities which indeed, they have already become at this point in time.