The Sunday Times publishes below an analysis of the August 19th 2009 Interim Report by a Panel of independent experts appointed by the European Commission concluding that the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT) and other Cruel, Inhuman or Degrading Treatment of Punishment and the Convention on the Rights of the Child (CRC) have not been effectively implemented in Sri Lanka in order to meet the obligations prescribed for the renewal of GSP + benefits.
The analysis is by columnist and legal consultant to The Sunday Times, attorney-at-law Kishali Pinto-Jayawardena whose column 'Focus on Rights' in this newspaper as well as her other academic writings in the public domain have been quoted by the Experts Panel primarily in regard to the failure to secure the rule of law in Sri Lanka's justice systems including persistent defects and shortcomings in the country's laws and national institutions when measured against international standards.
When one (with some difficulty) separates the proverbial wheat from the chaff in the current intense debates regarding the findings of the Experts Panel of the European Commission in its Interim Report (dated 19th August 2009) in relation to the renewal of the GSP + benefits, there is not very much that invokes surprise after all. It may even be said that - given the significant - and continuing failures in this country's rights protection framework, the Panel had scarce choice but to come to the conclusion that the three main international treaties to which Sri Lanka is committed to internationally, are not being actually implemented.
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The Report may be looked at askance for not taking into account (more realistically), the difficulties faced by the Government of Sri Lanka in trying to meet international standards relating to human rights protections while struggling to defeat an implacable terrorist enemy. However, many of the questions raised by the Experts in regard to problematic failures in Sri Lanka's national legal institutions, law enforcement and the legal system are quite unrelated to the conflict and remain Rule of Law concerns which have been continually raised by activists, academics and professionals in this country.
The failure to effectively implement the 17th Amendment to the Constitution, the demonstrated ineffectiveness of the criminal justice system and the politicization of the police investigative function are some of these questions. The Panel's conclusions that the police are unable or unwilling to investigate human rights violations, that torture in police custody is at least widespread and that the absence of a witness protection programme discourages witnesses from appearing and discourages complaints are surely not extraordinarily astounding to all of us?
Key to the review was the question not only as to whether in theory, national laws satisfied international standards but also whether in practice, theoretical guarantees were fulfilled. In both respects, the answers were given in the negative. The constitutional bill of rights was found to contain limitations and restrictions to an extent unacceptable by the three international conventions. In practice, even those rights that are legally guaranteed are not practically secured.
For example, though a domestic law was enacted in 1994 criminalizing torture and apparently giving effect to the UN Convention, this has had little impact due to bad investigations, lackadaisical prosecutions and a legal system plagued with delays and other failures in access to justice. Inevitably this spillover of denial of justice becomes aggravated when confronted by human rights violations during conflict. In that regard, Commissions of Inquiry that are politically driven do not serve to paper over the widening tears in the fabric of justice. Emergency legislation overriding the Constitution and creating criminal offences that are vaguely defined thus undermining fair trial rights are identified as matters of primary concern. The regulations confer sweeping powers on the authorities and excessively limit or eliminate the accountability of State agents.
At a third level, the finding is that the judicial and administrative infrastructure is neither adequate nor effective in regard to providing a remedy for violations of rights. One reason for this conclusion is the Panel's observation that the Supreme Court is not easily accessible for people from the North and East of Sri Lanka, that provisions in the emergency regulations shield actions against officials from the courts and that there is a fear of bringing cases regarding human rights violations which causes a chilling effect. These are conclusions that very few of us would quarrel about in the present context.
Concerns with dysfunctional constitutional institutions, in fact, occupy a great deal of space in this report. The Panel's finding - as harsh as this is - is that many of the State authorities in Sri Lanka entrusted with the task of protecting human rights, (including the National Police Commission and the National Human Rights Commission), have lost their legitimacy and credibility because of the non-application of the 17th Amendment to the Constitution. In the assessment of the Panel, this is as a result of political decisions. Threats to freedom of expression and the freedom of the press meanwhile comprise a vital part of the findings.
In conclusion it is relevant to ask as to whether the Government could not have gained more in the interests of the country and the apparel industry by collaborating with the inquiry in respect of what is essentially the conferral of a privilege or a benefit. In so doing, it may have been able to provide its own answers, (to whatever extent possible), to the allegations against it rather than refusing to even answer queries and questions put to it by the Experts Panel during the inquiry stage while at the same time demanding concessions as a matter of right. As the Sunday Times reported last week, damage control measures now sought to be put in place by the Government may indeed not have been necessary if such collaboration was evidenced in the first instance.
Extracts from the interim report by an expert committee of the European Union in respect of renewal of the special incentive arrangement for sustainable development and good governance (GSP+) titled 'the Implementation of Certain Human Rights Conventions in Sri Lanka' - August 19, 2009
According to Article 9(1) of Council Regulation 980/2005 of 27 June 2005, a GSP+ arrangement may be granted to a country which interalia has ratified and effectively implemented the conventions listed in Part A of Annex III of the Regulation among them, the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT) and other Cruel, Inhuman or Degrading Treatment of Punishment and the Convention on the Rights of the Child (CRC). According to Article 16(2), the GSP+ may be temporarily withdrawn in respect of all or certain products in particular if the national legislation no longer incorporates the conventions or if that legislation is not effectively implemented.
On 14 October 2008, the European Commission initiated an investigation into the implementation of the three conventions in issue in Sri Lanka. President Leif Sevon (former judge of the Court of Justice of the European Community and former President of the Supreme Court of Finland, Professor Francoise Hampson (former member of the UN Sub-Commission on the Promotion and Protection of Minorities and currently holding a chair at the University of Essex) and Professor Roman Wieruszewski (former member of the UN Human Rights Committee and ad hoc judge at the European Court of Human Rights) constituted the Panel. The Panel was expected to make an assessment of the situation and provide independent legal advice on the relevant questions. The interim report in question was prepared with this objective in mind looking at not only the relevant national legislation but also as to whether the conduct in practice of national authorities including courts which have the potential to violate rights.
The Interim Report focuses mainly on the events and actions after the GSP+ benefits were obtained by Sri Lanka on 27 June 2005 and is based on existing laws and practices rather than on 'undertakings and announcements' (at p. 8 of the Interim Report). It is stated at the outset that the evaluation deals with the actions by the Sri Lankan government and authorities and does not deal with violations by the Liberation Tigers of Tamil Eelam (LTTE). However, the focus on the government action must not be understood as disregarding or minimizing the significance of the LTTE violations or those of any other group.
Though the Commission requested permission for the Panel and representatives of the Commission to conduct an on-site visit in Sri Lanka, this was rejected. Consequently, the Report was prepared taking into account representations made to the Panel by organization as well as by examining documents in the public domain such as domestic legislation, court reports, reports and statements from the United Nations bodies, reports by international organizations, media reports, NGO reports, academic commentaries and other material. In order to confront such information thus gathered with the position of the Government of Sri Lanka, meetings with representatives of the Government were sought but not obtained.
In the assessment of the Experts Panel, it has been 'forced to conclude' (at p.117) that the three Conventions under scrutiny have not been effectively implemented in Sri Lanka. This is the case even if the Government of Sri Lanka had denied non-compliance. The Government has so denied in general terms and mostly, without providing sufficient evidence to rebut specific allegations.
The Panel cannot fully agree with the contention that the legal system in Sri Lanka adequately meets the legislative requirement of the Conventions. Some of the provisions of the Conventions have not been transposed at all while the provisions in the national legislation on other points are more restrictive than the corresponding provisions in the Conventions. The Sri Lankan legislation also contains provisions which are not in compliance with the Conventions. Effective implementation of the Conventions has not been and cannot be achieved by means of the case law of the Sri Lankan courts.
The Attorney General and his department influenced adversely the work of the recent Commission of Inquiry while being initially an object of its investigation.
The court system has failed. There are strong indications that it has been politicised. The former Chief Justice of the Supreme Court is observed to have misused his position by putting pressure on judges who have incurred his displeasure. Judges have been removed by the Judicial Services Commission when they have demonstrated too much independence.
The enforcement capacity of the National Human Rights Commission is questionable. The Commission is not seen as having the will or power to address serious issues of grave human rights violations. The recent Commission of Inquiry is not seen as meeting international norms and standards, lacking moreover independent support staff. There had been a lack of political will to inquire into the cases before the Commission.
While the politicisation of judicial and quasi-judicial bodies is of recent origin, there have been no adequate structures in place to prevent the same. Sri Lanka has failed to implement its obligation to prevent enforced disappearances by State agents and other forces for which it is responsible. It has also failed to carry out effective investigations into alleged disappearances. The result is complete or virtually complete immunity.
The practical implementation of the freedom of expression is one of the most serious problems in Sri Lanka. Anti terrorist legislation in particular imposes limitations on the freedom of expression which are not compatible with obligations under the ICCPR. The policy of the government and its propaganda against all critics of its policy effectively destroys the freedom of the press. The culture of impunity prevails as far as physical assaults and more serious attacks against journalists are concerned which de facto seriously limits that freedom. In general, Sri Lanka is complying with its obligations under the provisions in the ICCPR of freedom of religion.
The criminal justice system of Sri Lanka has critical shortcomings that obstruct justice for victims of human rights violations. The biggest problem is the complete inadequacy of the system of criminal investigations. While this is a problem of long standing duration, this has been aggravated by the fact that the police have increasingly been given a quasi military role in the insurgency during which, they have become, along with the armed forces, significant perpetrators of violations rather than investigators. The right to a fair trial is hampered by the harassment of parties and witnesses and by the transfer of trials from one court to another. Access to justice is limited both in geographical terms and in particular, by the emergency regulations.
Child recruitment (into the forces) was also a serious problem in Sri Lanka during 2005-2008. The government has taken steps to remedy this situation. However, it is impossible at present to assess if these steps are adequate.
The legislative framework concerning the protection of minorities does not raise problems. However, in practice, the rights of persons belonging to national minorities, in particular to the Tamil population in the North and East have not been adequately protected.
On the basis interalia, of the above findings, the Panel has concluded that the ICCPR, the CAT and the CRC have not been effectively implemented in Sri Lanka.