My critique of the Ministry of Human Right’s report on its preparations on a future National Human Rights Action Plan (NHRAP) has drawn the kind of contumacious response from one ‘Trigger Happy’ (hereinafter ‘Trigger’), which in Sheridan’s England may have resulted in a dual at Putney. That may not be perhaps the wisest thing to do with someone calling himself trigger happy, and indeed, is no insurance against his retention of the recently advertised ‘White Van Pest Control’ service, but some aspects of his overeager and substantively superficial intervention require rebuttal.
Trigger has taken issue with what he sees as a premature critique of future policy, but it is a pity that his comment is sullied not only by petty personalisation and some wholly imaginary imputations, but also by incessant sexual metaphors and attempts at scatological humour which read like the tumescent ruminations of an unusually priapic individual. These are out of place, have the unintended effect of diminishing his broader argument, and most unfortunately for him, turns on himself the accusation of a feverish imagination that he has inanely directed at me.
The major bone of contention is that my critique was of a future NHRAP that does not yet exist. It was not. This is manifest even from the sections of my article Trigger quotes in his comment, and in which my contention was that if the report was anything to go by, not a lot could be expected of a future NHRAP. It seems to me that Trigger has deliberately distorted this basic foundation of my critique, so as to contrive the basis for his opening gambit as well as his choice of metaphorical theme.
My article was a critique of the report prepared by Dr. Perera and Ms. Fernando and its contents, which sought to raise considerations and issues pertinent to the formulation of an NHRAP that are either not dealt with, or inadequately dealt with, in the report. The critique, which raised certain selected issues that were either in my view particularly important, or were those I was most qualified to comment on, was based on a careful reading of the report. That seems to me to be a reasonable and normal basis on which to review a document. Trigger’s argument that I should have been present at the consultation at which the report was made public so as to be able to comment on it is quite frankly absurd. It is like saying that the validity of literary criticism depends upon the critic’s presence at the book launch.
Incidentally, I wonder whether Trigger’s evident approbation of my ‘senior (and wiser) colleague’, which presumably is a reference to Rohan Edrisinha, might change when he realises that Rohan agrees entirely with the substantive views expressed in my article (for example, on the Seventeenth Amendment, on the Supreme Court’s decision in Singarasa and its ICCPR Advisory Opinion, on the constitutional and legal problems encountered in the full and meaningful realisation of international human rights standards in Sri Lanka and so on). It must come as a bitter disappointment that on precisely the same issues, Rohan has on several occasions associated himself with me in putting his name to joint publications, including newspaper articles and a recent extended paper cited in my article.
Trigger is unhappy with references I have made to official documents of the OHCHR establishing guidelines to be followed in the formulation of NHRAPs. Here my point was that UN guidance required meaningful consultations with and involvement of civil society in the formulation of a NHRAP. The objective of this requirement is that civil society perspectives on human rights, which are by definition different from those of government the world over, are represented and incorporated in a NHRAP.
My position on this was and remains that this expectation has not been met in the process so far in Sri Lanka, and nothing that Trigger has said by way of peremptory declarations of future intent merits an alteration of that view. The report, rather than seeking to strike the necessary and proper balance between the interests of civil society and government, arrived at via a genuine commitment to achieving such a balance and through a form of consultations that can achieve that result, is essentially grounded on accommodating executive convenience, especially in facilitating the policy of the current administration on conflict resolution. The basis for the last point is to be found in the preliminary observations of the report in the section on civil and political rights. So if there has been any ‘positing on’ and ‘conflating’ of the government’s approach to conflict resolution with issues relating to the formulation of a NHRAP, it has been done by the report’s authors themselves, and indeed by Trigger himself.
It is telling that Trigger’s attempts at rubbishing me on this score relies entirely on the consultation of 24th February, without a word on the role and relevance of the Coordinating Committee, which one can assume from the structure of the process described in the report and also in terms of the UN guidelines, is the main mechanism for ensuring consultation, participation and deliberation. My view on this implied that the appointment of the Coordinating Committee was evidence of the government’s compliance with UN guidelines, but my criticism in this regard was that civil society representation in that committee does not seem to have ensured incorporation of critical matters (such as those enumerated in my article) in the report.
Trigger reveals that the report ‘was merely a description of what had led up to the consultation. It did not set out to form a conceptual basis for the future NAP.’ For anyone concerned about ensuring an effective, meaningful and credible future NHRAP, it is certainly reassuring that the report is merely a description of events. On Trigger’s authority, we can now assume that the report’s ineffectual recommendations are as useless as I had originally thought. But if the report does not set out the conceptual basis of the future NHRAP, then it also reveals a rather contemptuous attitude to consultation whereby civil society is merely told about what the government in its infinite wisdom plans to do. Judging by Trigger’s manifest displeasure at my article, it would seem that this includes a hypersensitive and defensive attitude to legitimate criticism and public discussion as well. The dangers of this kind of attitude require no retelling.
Trigger seeks to impugn what he assumes to be sources for my article on the basis that some of these are ‘local’ or ‘web-published’. I am uncertain as to the justification for Trigger’s antipathy to sources that are either local or accessed online. What I have referred to are publicly available official documents of the UN system. Likewise, Trigger’s reference to ‘tabloid’ reportage of the Profumo trial, implying that tabloid journalism is somehow a lesser form of freedom of expression, echoes the Defence Secretary’s appalling dismissal of Lasantha Wickrematunge’s murder on the same ground in that infamous BBC interview.
There is a similarly ill-informed suggestion that I have been paid for the publication of my article from Canadian and Australian funding. Quite apart from the crudeness of the reliance on the ‘NGO dollar’ argument from rent-a-mob populism, this is a malicious insinuation because the simple truth is that I have never been remunerated for anything I have written for Groundviews. It appears that Trigger’s understanding of citizen journalism is as primitive as his apprehension of the role of online resources in contemporary research.
Trigger’s only real serious point with regard to a substantive issue is one of such staggering ignorance that it is clear he has let his sycophantic zeal get the better of him. This is where he offers an astonishing alternative theory about what is established international best practice in entrenching human rights within a legal system.
My point here was that the relevant best practice requires that all policy and decision making be made subject to human rights, and that the guiding presumption in the formulation of a NHRAP should be the same; not the converse as in the Perera-Fernando report. In the examples I cited, this is why the UK Human Rights Act requires a ministerial statement of compatibility with the rights recognised therein to be made in relation to all new legislation as a requirement of parliamentary procedure, the European Court of Justice will enforce both European Charter and Convention rights as part of the acquis communautaire of the European Union in any action (independently of any proceeding in the European Court of Human Rights), and in the strongest example, the South African Bill of Rights subjects all acts and omissions to both itself and international law, is horizontally applicable even to private actors, and is enforced by a powerful Constitutional Court. In the case of Northern Ireland, which is particularly apposite to us because the process is still ongoing and is one in which the enactment of a comprehensive bill of rights is being contemplated as part of a broader peace agreement, once again the principle of the pre-eminent application of human rights is expressly set out.
It follows that the same international standards anticipate that (a) there are inherent but defined limitations on the exercise of all but the non-derogable rights, and (b) there will be occasions in which human rights would require restriction or indeed suspension (derogations), and to that end a detailed set of substantive and procedural rules and controls have been developed. These are to be found in the limitation and derogation clauses of constitutional bills of rights, in the ICCPR, and in other international restatements of best practice such as the Siracusa Principles and Paris Minimum Standards. This principled approach to legally accommodating situations of crisis necessitating the imposition of restrictions on the exercise of human rights is, however, emphatically not the same thing as Trigger’s argument in favour of excessive pragmatism and executive convenience.
When I made the observation about the principle of the pre-eminence of human rights, I did so in full cognisance of these technical considerations. If people like Trigger do not understand these technical issues of comparative constitutionalism and human rights law, they should either get competent advice before pompously sounding off, or have the modesty to say nothing and save themselves the trouble of looking very foolish. If the charge is one of idealism, however, I am more than happy to plead guilty.
While it is true that Article 4 of our Constitution also enjoins all organs of government to respect, secure and advance fundamental rights, there are both structural and textual problems in that instrument which seriously impede full enjoyment (which I have listed in point form in my article), as well as of course a massive disparity between what is in the Constitution and the culture of governance. I want to come to this point in a bit, but this critique is not one solely directed at the present government. It is a problem that has afflicted democracy and constitutionalism in our country since independence (and particularly acutely since the enactment of the authoritarian present Constitution), and as such, the critique is of the Sri Lankan State and its successive governments including the present one. The distinction is one that Trigger may profitably make, particularly before making wild allegations of political bias against anyone offering a modicum of resistance to his point of view.
Having said that, it is only those of Trigger’s ilk who can in good conscience hold that there is not a situation of crisis proportions with regard to human rights and humanitarian needs in our country today. It is both disingenuous and cynical to downplay this crisis by mealy-mouthed concessions to ‘challenges which have to be overcome.’ Controverting the government’s abysmal record with regard to legal accountability in any number of human rights violations in a way that respects the credulity of intelligent people requires much more than self-referential regurgitations of official denials, government propaganda and rhetorical posturing. And it requires a future NHRAP that is a bit more credible than what the Perera-Fernando report promises.
Finally, Trigger makes a repeated allegation of party political bias, which seems to be based on the simplistic reasoning that he who dissents from the government’s version of things must necessarily be a UNP supporter. While this laughable claim originates entirely in his fertile (and febrile) imagination, it is also an instance of breathtaking hypocrisy from someone entering this debate with an ill-conceived apologia for the government. More ominously perhaps, his passing observation about the ‘(never to be achieved) enthronement of the present Opposition’ can be construed either as a grand delusion of omnipotence or as a fervent if conceited hope, but either way, it is a startling revelation of a despotic outlook apropos democratic choice and change and a withering contempt for the Sri Lankan electorate.
What I have said in my previous article and elsewhere originate in a strong belief in liberal democratic values, and the critical perspectives about the Sri Lankan State, its politics and its governance that those beliefs engender. It may come as something of a surprise to someone of Trigger’s sclerotic worldview, but participation in political debate is possible from principled normative standpoints without also jumping on party political bandwagons. In any case, my political preferences are my democratic right, and it is no business of Trigger’s to be giving unsolicited lectures to anyone about such choices.
In closing though, I must admit I enjoyed Trigger’s use of The Rivals in his conclusion, which is genuinely amusing, satirically clever and devoid of the sleaze of scabrous allusions of his other witticisms. But then, I have the capacity to laugh at myself, which I suspect is more than can be said for Trigger, given his prickly sensitivity to criticism and patently eccentric notions on the free exchange of ideas in a democracy.