Colombo, Constitutional Reform, Human Rights, Peace and Conflict, Politics and Governance

Responding to criticism on human rights: A case of ante-natal stress disorder?

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.

  • pacheez

    What kind of buggery-pokery is this!? If one believes, at this stage of the game, that a few mere challenges must be overcome I presume you are among the island’s 500,000 odd heroin addicts or worse. In no part of the world can 30 years of counterinsurgency-cum-terror warfare slide into civil society, law and order, or any particular regard for human rights. It is far more predictable that thousands more of SL’s decent citizens will opt for emigration, not wishing to live in a ‘Buddhist’ & fascist theocracy to come.

  • Realist

    The Descent to the Dark Ages by Realist

    At last the International Community seems to have woken up to the situation in Sri Lanka if we go by the report of M/s Pillay. It was plain for all to see that the Army was firing on civilians. The bombing of the Puthukuduiruppu hospital was known. Civilians crossing over to the government territory were given the third degree. For months reporters have pointed out that there are abductions, torture, civilian bombings and extra-judicial killings. A Tamil suspect has no rights. They must be tortured or killed so that there is one less Tiger. This is undoubtedly the policy of the present regime. It routinely denies every report of violation of human rights and media freedom and paid hirelings are there to write spurious replies to international NGOs that dared to expose the truth. War Crimes? Of course the war here is no different from that in Darfur. The killings may not be so open as in Rwanda or in Serbia but they are as real as any of these places if we go by reports reaching international websites. Remember Goebbels who was Hitlers propagandist. . If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” — Joseph Goebbels

    Sometimes you look around and wonder how things could have gone so wrong so quickly. The militarily organized practice of torture, the sexual abuse, and all other abuses of men and women, clandestine incarcerations and forced disappearances, are the speciality of the present regime. Previous regimes always held back from treating the Tamil people as enemies. They understood that the Tamils had genuine grievances and that they had been victims of the Sinhalese goons. Men like Sarath Fonseka were recognized for what they were- vicious hyenas who will kill with no compunction. The Defense Secretary the word goes was behind the black cats which killed ruthlessly the JVP in the late 1980s. Their troops are purveyors of violence, torture abduction and killings. Death and misery are the principal weapons in the war against a section of the people whom we consider our own. . Everything is for sale here, even men’s tormented souls-at least, those who still possess them.
    “The time has come to hear the truth about this tragic war. The truth is hard to come by because the press and the media are controlled through the exercise of terror the elusive white van. We pretend only the LTTE practices terror. Most nations are deceived about themselves. Rationalizations and the incessant search for scapegoats are the psychological cataracts that blind us to our sins. But the day has passed for superficial patriotism. He who lives with untruth lives in spiritual slavery.” – Rev. Dr. Martin Luther King, Jr. (1929-1968), US civil rights leader.
    . The state of our nation is in the grip of anomie – meaning ‘a lack of the usual social or ethical standards’. This word is derived from the Greek term ‘anomos’ which means “lawless”. It is obligatory that we ask ourselves how and why we have arrived at such a state. But who cares.
    The fact of the matter is we have a government that will do what it wants to do for the next few years,” “The worst is yet to come. It’s sort of like we’re essentially powerless [and] just play it out.”
    Abraham Lincoln was asked how he would deal with the Confederate army after it was defeated. He said he would treat them like brothers. It was this treatment of the defeated enemy that made it possible for the USA to remain one state. What a contrast in the attitudes of our regime.

  • Trigger comes across as surprisingly familiar in tone and content – in fact, very much like Dayan J – in style as well. One wonders….!

  • wijayapala

    Dear Realist,

    Previous regimes always held back from treating the Tamil people as enemies. They understood that the Tamils had genuine grievances and that they had been victims of the Sinhalese goons. Men like Sarath Fonseka were recognized for what they were- vicious hyenas who will kill with no compunction.

    You forgot to mention that previous regimes had totally and utterly failed to deal with the LTTE, an organization that has no interest in negotiating for a compromise and is more than willing to hide behind Tamil civilians to survive. Men like Sarath Fonseka were marginalized in favor of incompetents like Anuruddha Ratwatte and footlickers like Rohan Daluwatte. That is why we were forced into a humiliating CFA with the LTTE, which you probably saw as a wonderful thing.

    Abraham Lincoln was asked how he would deal with the Confederate army after it was defeated. He said he would treat them like brothers. It was this treatment of the defeated enemy that made it possible for the USA to remain one state.

    You have truly an ignorant understanding of US history. First of all, Lincoln was assassinated before the task of Reconstruction could begin, and his party was sharply divided between those who favored “reconciliation”- meaning that the southerners should be appeased even if it meant allowing them to suppress the blacks- and those who favored justice and uplifting the blacks. Read Eric Foner’s book and you will see how the prevailing “reconciliation” view led to the continued marginalization of black Americans for another 100 years until the Civil Rights Movement.

    Colombo pseudo-intellectual “liberals” should really take the time to study history in depth instead of memorizing the shallow soundbites they lap up from NGO seminars. I hope Realist will take the time to learn more and then come back to provide a more “realistic” analysis of the situation.