Focus on Rights

That tempers will get frayed in the coming elections to the United Nations (UN) Human Rights Council when Sri Lanka will present its candidature for re-election is a sure certainty. Shorn of angry rhetoric however, the question is simple; according to national and international obligations, has the Rajapaksa government done enough for Sri Lankan citizens to justify asking for re-election?

In an aide-memoire presented to the President of the UN General Assembly in early April, the government has advanced several pledges which bear an uncanny resemblance to something out of the fabled Grimms' fairy tales. Particularly its promise that "Sri Lanka will take necessary steps to enable the reconstitution of the Constitutional Council (CC) which will facilitate the strengthening and effective functioning of national human rights mechanisms, including the National Human Rights Commission' rings considerably hollow. For close upon two and a half years, the government actively encouraged the throwing of the 17th Amendment to the proverbial wolves. The National Human Rights Commission, systematically and self destructively deprived itself of both moral and legal authority, its latest act being to declare that persons detained under emergency have no right to confidential legal representation as discussed earlier in this column. Now, it appears that the canary is indeed singing a different tune for the benefit, no doubt, of United Nations minds in the hope that they will be naïve enough to listen and applaud.

Equally fantastic is that part of the voluntary pledges and commitments relating to, (as claimed), 'fulfilling obligations to treaty bodies.' The list of treaties articulated therein to which Sri Lanka is a State party, is cosmetically impressive no doubt. Yet, this aide-memoire is conspicuously silent as to the practical implementation of the obligations contained in these treaties. Particularly, its implied claim that the International Covenant on Civil and Political Rights Act No 56 of 2007 (the 'ICCPR Act') gives full effect to ICCPR obligations is a most damning misrepresentation of reality.

As stated previously in this column, this ill titled 'ICCPR Act' casts the Covenant itself into disarray, (and I am only half humorous when saying this), by claiming that it gives effect to Covenant obligations. The Act was a direct consequence of the Sinharasa decision (Sinharasa vs Attorney General and Others, S.C. SpL(LA) No. 182/99, SCM15.09.2006) which declared that Presidential accession to the ICCPR Protocol was an unconstitutional exercise of legislative power as well as an equally unconstitutional conferment of judicial power on the United Nations Human Rights Committee.

Given that this decision resulted in the Views of the Committee having no practical effect within Sri Lanka, the government was then caught in a cleft stick. It had to demonstrate that the rights in the Covenant were being implemented as an issue not only crucial to the upcoming seat in the United Nations Council but also in regard to preferential trade rights such as the GSP+ concessions granted by the European Union. The compromise that was hit upon was an 'ICCPR Act' which however was a travesty of what it promised. While the sequence of events in this regard is extremely clear, the confusing of the real issues is paramount.

What the government should have actually done was to give effect to Covenant rights by amending the Constitution and domestic laws to include rights such as the right to life which is not currently constitutionally protected. The right to life has been (negatively implied) by the Supreme Court only in three cases and has not been expanded subsequently. In any event, statutory or constitutional enshrining of this right would have afforded better protection to us all. Such action owes nothing to international intervention. The Indian Constitution for example has, for decades used the right to life positively to protect the rights of Indian citizens. Why should Sri Lanka be different?

Alternately, the government could have passed a law directly giving effect to the Views of the Committee. The enactment of such a law is not such an outrageous thought. In Columbia, for example, Law 288 of 5 July 1996 stipulates the enforcement of awards of compensation in accordance with the Committee's Views and in the Czech Republic, the Ministry of Justice is empowered by Act No. 517/2002, to coordinate the implementation of the Views.

As stated, the Views of the Committee only expanded the rights of Sri Lankans. Neither were these Views arrived at indiscriminately or hastily. Yet, none were implemented. In one instance, the Committee found that the sentencing of a lay litigant to one year rigorous imprisonment for contempt of court after talking loudly in the Supreme Court amounted to arbitrary detention and recommended the enactment of a Contempt of Court Act. But the government declared that it could not implement the Views since this would amount to an interference with the judiciary. It is absurd defences such as these which indicate the manifest lack of political will. A Contempt of Court Act is yet not enacted and the country is manifestly the poorer for it.

Even where implementation of the Committee's Views was recommended by the National Human Rights Commission, (in its previous term when the Commissioners were constitutionally appointed), this was not adhered to. For example, the Commission, (upon a request being made to it by the then government), determined the amount of compensation to be paid to Ravaya editor Victor Ivan consequent to a violation of Covenant rights as a result of the arbitrary filing of criminal defamation indictments and delay in trial. Yet, compensation was never paid.

If the Mahinda Rajapaksa government wishes to stand aloof from the United Nations structure, it must do so without demur. It cannot however, as is commonly but pithily said 'keep on running with the hare and hunting with the hounds.' In other words, it cannot heap ill advised scorn on United Nations bodies (including the Office of the High Commissioner for Human Rights), allow its politicians to refer to the under secretary of the United Nations as a 'terrorist', allow its diplomats and government officers to engage in vitriolic verbal exchanges that departs fundamentally from the commendably shrewd diplomacy practiced by persons of the calibre of former Foreign Affairs Minister Lakshman Kadirgamar and then cannily profess itself to be in keeping with the policies and spirit of the United Nations while campaigning for seats on the Council. It is this kind of hypocrisy that in the world of international realpolitick needs to be practiced with caution by Sri Lanka.

Just three questions needs to be initially resolved with determination for us to hold our heads up high and demonstrate our commitment to fighting a bloody war against bloody opponents with minimum integrity. Firstly, the 17th Amendment needs to be enforced immediately with its attendant reconstitution of the CC and the constitutional commissions including the National Human Rights Commission as well as the National Police Commission. Secondly, all the resources of the State should be directed towards the effective and speedy prosecution of those errant soldiers and police officers who commit war crimes and practice torture. Thirdly, treaty pledges should be practically implemented and the right to life should be statutorily and constitutionally recognized. It is only at that point that we can take the moral high ground to search for a constitutional solution that will accommodate the rights and concerns of minorities.

Absent this determination, the matter is very clear; if we lose our seat in the coming elections, it is the government and the government alone who should be fairly and squarely blamed. Hysterical outbursts against the opposition, non governmental organisations or the purported perfidy of international observers will accomplish very little.

The canary sings a different tune