War drums and the forsaking of rights protections

By Kishali Pinto Jayawardena

While beating drums on the war front may be well and good, what should we do when institutions that protect rights systematically and deliberately renege on their statutory duties at the (implied or express) bequest of the government?

Before the substance of this query is discussed however, the heroism of the average soldier must be differentiated from the generals and politicians who make political capital out of sacrifices made in blood and tears of rural Sinhalese men and women comprising the vast majority of the forces. In that same strain, are the offspring of even a single prominent politician serving in the service ranks? Much ado was made of one of the sons of the incumbent President joining the forces and various letters were written to the newspapers heaping accolades on both the father and the son. Consequently however, the son was packed off to a foreign training school and, (if I may be permitted this irrepressible colloquialism), mum was the word thereafter on the part of these fervent 'patriotic' letter writers.

The same twisted logic applies to the sons and daughters of the so termed 'upper class' and 'upper middle' class urbanites in this country, many of whom are most shrill in advocating war but tend to shiver when asked as to whether their spoilt nightclubbing progeny could be sent to swell the ranks of those fighting for the cause that they so hysterically defend. And what is truly ironic in this scenario is that those who are fighting on the frontlines come from villages where it is no strange thing for Sinhalese to live peacefully side by side with the Tamils and Muslims, intermarrying even in the process.

It is therefore not surprising that much of the arrant racism that I have heard in my lifetime has emanated, not from ordinary villagers, whether in Kandy, Anuradhapura or Matara but from the fairly, (and in some instances, stupendously), well educated city based elite. This remains the eternal paradox in this country; that the image of mainly decent, tolerant people could be tarnished through the decades by a collection of conscienceless politicians, their willing henchmen in the political machinery and by the racist educated elite of the day including for the most part, lawyers of no small professional ability.

Let us however return to the question of reneging on rights protections, posed at the commencement of this column. This question brings to the forefront, a number of issues, not the least of which is the still outstanding non-implementation of the 17th Amendment to the Constitution and the continuing unconstitutional composition of key commissions, including the National Human Rights Commission (NHRC). This matter has again surfaced as a consequence of the latest faux pas of the current 'Commissioners' who have now thought it fit to impose a time limit of three months (from the date of the incident) on the filing of petitions. The time limit, (imposed by internal circular (No. 7 dated 20.6.2007), completely violates the spirit and the substance of Act, No 21 of 1996 which established the NHRC.

This is the second serious faux pas on the part of this 'Commission.' If it may be recalled, the first faux pas occurred, a year or so back when the 'Commissioners' decided to stop inquiring into some 2,000 complaints of disappearances. The inquiry into these complaints had been brought over from the previous Commission, whose members were incidentally, approved by the Constitutional Council unlike the current 'Commissioners.' The unacceptable reason for stopping the inquiries "for the time being, unless special directions are received from the government" was that "the findings will result in payment of compensation, etc" (as per a note of the Secretary to the NHRC, 29 June 2006). The storm of protests that ensued caused great embarrassment to the government with the Minister of Human Rights publicly stating that the NHRC did not have to wait for 'instructions from the government' to proceed with the inquiries. Thereafter, the 'Commissioners' revoked their decision but the degree of public confidence in their actual commitment in pursuing these inquires remained low.

This second faux pas is even more dangerous, besides being contrary to the law. In the first instance, the Act does not impose a time limit for the filing of petitions alleging a fundamental rights violation before the NHRC. Consequently, the internal circular, (which cannot amend the substantive provisions of the Act), is contrary to the Act itself. Section 9(3) gives authority to the Commission to regulate its procedure in regard to conducting its meetings and so on but this clearly does not give its members to fix a time limit on the receipt of complaints where no such time limit has been imposed by the law.

This is made all the more evident by the fact that the Act (in Section 13(1) appears to specify a time limit only in the very specific context of petitions being filed before the NHRC and then subsequently taken to the Supreme Court in the form of fundamental rights applications under Article 126 of the Constitution. However, its deliberate silence in regard to the general filing of applications buttresses the fact that the legislature, (when it passed the Act without division in 1996), did not intend for any such time limit to be imposed. Case law on the point that a substantive right (for example, relating to the time limit for filing petitions/complaints) conferred by a statute cannot be taken away by even a regulation, has long been settled law (see CWC vs Superintendant, River Valley Development Board, 76, NLR, 1). It is extremely disturbing that the "Commissioners' two of whom are retired appellate court judges and the third, a retired High Court judge could be unaware of this clearly authoritative principle.

The sound rationale by which Parliament did not impose a time bar on receipt of complaints before the NHRC in 1996 relates to the level of economic hardship as well as the prevalence of conflict which would make adherence to such prohibitions extremely difficult if not impossible. This is however not a concern which appears to have occurred to the current 'Commissioners.'

Imposing such a narrow time limit of three months is moreover, a direct departure from the practice of its predecessor Commissions. It is all the more problematic as the discretion in admitting complaints beyond this illegally imposed time limit lies in the hands of the Commission, (as per the June 2007 circular) without any regard to the nature of the complaint.

Therefore, even complaints of grave human rights violations such as torture and arbitrary deprivation of life, (now declared as an implied fundamental right by the Court), can be shut out if the petitioner goes beyond the three month period. This may be convenient for the 'Commissioners' in showing that the level of complaints has decreased but is an affront and an indignity visited on thousands to whom the NHRC is often, the last recourse, given that these people cannot afford legal relief.

So, while the war drums beat, erosion of rights becomes of minute importance. Undoubtedly, if this process continues at its present frightening speed, we may not have any statutory or constitutional institution worth speaking of in the future.