Advocacy, Colombo, Human Rights, Media and Communications, Politics and Governance

The farcical ‘National Action Plan for the Promotion and Protection of Human Rights’ in Sri Lanka

Exactly a year ago today, a week before the Royal-Thomian, the journalist J.S. Tissainayagam went into the TID to enquire after his friends who had been taken in for questioning the previous day, and promptly walked into a monstrous nightmare that continues to date. After months of agonising uncertainty and delay, roughshod abuse of process by the TID and a deplorable judicial refusal to enforce procedural rights fundamental in a democracy by the Supreme Court, he was finally charged last year under that ghastly blot on our legal landscape, the PTA. Tissa thereby won the suspect distinction of becoming the first journalist to be prosecuted for PTA offences arising directly out of the practice of his profession.

In proof that neither international opprobrium nor civil society outcry matters a jot in Sri Lanka these days, the year of Tissa’s incarceration we mark today, only saw even more egregious assaults on freedom and democracy. We have seen, among many other things, the torture of Keith Noyahr, the assassination of Lasantha Wickrematunge, a breathtaking performance by the Defence Secretary on the BBC (which could have been dismissed as either asinine or lunatic if not for the chilling terror it instilled), the en masse exile of media freedom activists and journalists, and most recently, the bizarre abduction and/or arrest of Sudar Oli editor Vidyatharan. The latter case vividly demonstrates – if the horrific outrage that is being visited upon the people of the Vanni is overlooked for the moment – the utter criminalisation of the Sri Lankan State. It has become the persecutor of difference and dissent; the predator on life, liberty and property; the protector of perpetrators of human rights violations; and the patron of the purveyors of barbarism in our society. When the difference between an abduction and an arrest becomes so fantastically blurred, these are not hyperbolic claims. References to Leviathan and comparisons with Zimbabwe have become trite and meaningless through overuse, in a situation where perhaps allusions to the Borgias might be more appropriate.

Perhaps one of the most pernicious features of this appalling drift towards lawlessness is the rhetorical pretence of the State to uphold all manner of wonderful things; things in such thin commerce nowadays as the rule of law and human rights. Which is why the pinkish view of the world painted by its representatives, like Minister Mahinda Samarasinghe in Geneva this week, needs to be ‘re-represented’ and told like it really is.

Among Minister Samarasinghe’s catalogue of achievements is a ‘National Action Plan for the Promotion and Protection of Human Rights’, which his Ministry of Disaster Management and Human Rights is in the process of drafting. The formulation of National Human Rights Action Plans (NHRAPs) by individual States was one of the measures that were part of the strengthened international system of human rights protection and promotion that was envisaged by the Vienna Declaration and Programme of Action at the conclusion of the World Conference on Human Rights. The adoption and implementation of such a plan is the first undertaking of the government of Sri Lanka, among several others, as part of its voluntary commitments under the last Universal Periodic Review (UPR). The Office of the High Commissioner for Human Rights (OHCHR) has established extensive guidelines and general principles applicable to the preparation and implementation of National Action Plans, including guidance as to process, content and expected outcomes.

A ‘Report on the First Phase of Consultations in the Development of the National Action Plan for the Promotion and Protection of Human Rights’, prepared by Rohan Perera and Minari Fernando was presented at a consultation in Colombo on 24th February 2009. Minister Mahinda Samarasinghe enthusiastically reported on the progress the government has made on the formulation of Sri Lanka’s NHRAP to the Human Rights Council on 2nd March 2009. Closer examination of the report by Dr. Perera and Ms. Fernando, however, makes it more difficult to share the Minister’s sanguinity. It is a disappointing and rather timorous document for several reasons, chief among which is its authors’ apparent preoccupation with accommodating the sensitivities of the government. This is particularly so in regard to the government’s policy on conflict resolution, and which forms the basis for the undemanding nature of its recommendations.

If there is to be any hope that something can be salvaged from the report meriting inclusion in a future NHRAP that is credible and meaningful, its assumptions and recommendations must be subjected to a detailed critique, especially its recommendations for action, which are in general, perhaps the weakest element of the report. That, however, must wait. What follows are a few selective remarks.

Several general observations require mention with regard to the overarching tenor of the report. The drafters have fundamentally misinterpreted the UN’s conception of what an NHRAP is supposed to achieve when they state that, “While the fundamental purpose of an action plan is to improve the promotion and protection of human rights, it achieves this by placing human rights improvements in the context of public policy…” In fact, the opposite should be the case whereby the purpose of an NHRAP is to place all public policy making and implementation in the context of human rights. Effective realisation of human rights may only take place when every function of government is placed within a human rights framework in which human rights prevail over every other consideration. This is what is contemplated by the UN as well as in other examples such as South Africa’s Bill of Rights, the UK’s Human Rights Act, and the acquis communautaire of the EU. To state the reverse, that human rights may be overridden by other competing public policy considerations, is a misapprehension of purpose (based on an over-solicitous sense of what is practically achievable), and worse, it merely resonates what in any case happens in Sri Lanka. This presupposition of the report should in itself be sufficient basis to conclude that the putative NHRAP will be stillborn.

This accommodation of pragmatism and executive convenience seems to come from a particular perspective the drafters hold about their role. That is, as legal counsel to the Ministry rather than as independent consultants charged with the task of recommending policy change to the government so as to meaningfully mainstream human rights. More seriously, the consultative process through which representatives of civil society participated in the development of the report seems to have singularly failed in this instance. The guidelines of the OHCHR on the formulation of NHRAPs establish as a requirement of process that civil society be consulted. The Ministry had in November 2008 appointed a Coordinating Committee, ‘tasked with guiding the development, implementation and monitoring of the Action Plan’, and which includes several prominent Sri Lankan civil society personalities. The expectation that civil society participation would qualitatively enhance the process, and consequently the substance, of the future NHRAP has clearly been frustrated from what is evidenced in the report.

The report focuses on six main areas which it says require special attention. These are identified as (a) national and international legal frameworks; (b) national institutions; (c) economic, social and cultural rights; (d) civil and political rights; (e) vulnerable groups; and (f) human rights education. What follows are some observations on the report’s treatment of some of these issues.

The discussion on national and international legal frameworks pays fulsome tribute to the government’s commitment to full cooperation with international human rights procedures and mechanisms, and mentions its voluntary submission to and commitments undertaken at the UPR. Evidence of the government’s positive record includes its reporting under various instruments, notwithstanding the fact that treaty reporting procedures are widely acknowledged to be among the weakest of compliance mechanisms in international human rights law, and that in many States including Sri Lanka, there is a substantial time-lag and gap in practice between national reports, treaty body responses, and remedial action.

In an interesting formulation, the report states that, “…the Government has fulfilled international obligations through participation in most key human rights instruments and labor [sic] conventions, the full implementation of which is also one of its goals.” This is a disingenuous attempt at obfuscating the real issues because the assertion that Sri Lanka ‘participates’ in an international legal instrument does not mean anything in law for the purpose of fulfilling any of its human rights obligations, and the claim of fulfilment is immediately qualified by the admission that ‘full implementation…is also one of [the government’s] goals.’

While as stated at the outset it is not intended here to discuss the ‘actions’ recommended by the report, perhaps those listed under this category serve as a useful illustration of what is so wrong with them. The nine actions enumerated, seemingly aimed at strengthening the national legal framework in the light of international standards, concern such matters as an exhortation to effectively implement selected labour and employment legislation, ‘examine the need for reform’ of others, mental health, corporal punishment and so on. While in and by themselves these actions ought to be taken (and admittedly matters such as the welfare of IDPs and child abuse are extremely important), the point is that this is not the place to recommend them. Following the hugely controversial Supreme Court decision in the Singarasa case in 2006 and the same court’s derisorily reasoned out Advisory Opinion on the ICCPR last year, Sri Lanka confronts several fundamental constitutional problems with regard to both meaningful implementation of international human rights, as well as effective access to at least one treaty body in the form of the UN Human Rights Committee. None of these vital issues find any discussion in the report, and it is presumed that there was none in the deliberation of the Coordinating Committee either. Civil society representatives in this Committee therefore have a responsibility to explain how these issues escaped their attention, given the fact that public debate on them has been particularly vigorous in the media and elsewhere since last year because of their relevance to the renewal of the EU’s GSP Plus tariff benefits for Sri Lanka.

In a context in which the Seventeenth Amendment to the Constitution lies unimplemented due to the intransigence of successive Presidents and where unconstitutional appointments have been made to the Commissions, eroding their independence and legitimacy, the report can only manage to observe that, “Inadequate resource allocations, human resource challenges, questions relating to the appointment of key personnel etc., have led to the downgrading of the Human Rights Commission. Similarly, other institutions in Sri Lanka do not function at their optimum resulting in inefficiencies and inadequacies in the protection of human rights.” This is an absolute whitewash of the real issue: the deliberate and potentially impeachable violation of the Constitution by refusing to act in terms of the Seventeenth Amendment to constitute the Constitutional Council and other Commissions. The entire democratising spirit of the Seventeenth Amendment has thus been emasculated with predictable consequences for good governance, the rule of law, independence of key public services, and accountability.

The report’s consideration of economic, social and cultural rights, and civil and political rights are so utterly inadequate as to justifiably raise questions regarding both competence and good faith. For example, in relation to realising economic, social and cultural rights in the context of post-conflict recovery and development, the report observes that, “There is a need to pursue programmes to develop former conflict zones in order to bring afflicted communities at par with those living other provinces of the country” (emphasis added). This seems to have been stated in ignorance of the well-established principle of post-war economic recovery that, according to the UNDP’s Crisis Prevention and Recovery Report of October 2008, “Post-conflict economic recovery is often not about restoring pre-war economic and institutional arrangements; rather it is about creating a new political economy dispensation. It is not simply about building back, but about building back differently and better. It is essentially transformative.” There is little that is transformative about the report’s vision about how to use socio-economic rights in addressing the imperatives of a war-affected, developing society such as ours.

Moreover, the view that “There is also a need to ensure that existing laws are effectively implemented so as to ensure the protection and promotion of economic, social and cultural rights” presupposes that existing laws in fact guarantee these rights, and the problem is one of implementation. This of course is not true, because the existence of laws that generally concern the matters dealt with by these rights does not mean that they are available in the form of rights to the fullest extent envisaged by international instruments. Moreover, these rights are constitutionally unprotected in Sri Lanka, only finding reference as part of the unenforceable Directive Principles of State Policy, and therefore useless in effect.

The report’s introduction to the section on civil and political rights is a cruel joke. It avers that, “…it is not the policy of the State to adopt and enforce extraordinary measures that are outside the framework of the law. The Government has steadfastly insisted that all agents of the State should necessarily carry our arrests, detentions and investigations including interrogations, in accordance with the due process of law and in a manner would not infringe human rights.” The government maintains these laudable commitments, “Notwithstanding the serious nature of the security situation prevailing in Sri Lanka resulting from a reign of terror unleashed by the most ruthless terrorist organisation in the world, the LTTE…”

Assuming the factual veracity of the ‘most ruthless’ status of the LTTE, this kind of gratuitous political opinion is both irrelevant and misleading. It is irrelevant because the report should be focussing on the measures to be taken to improve the behaviour of the State in regard to the protection and promotion of human rights, regardless of the ruthlessness or otherwise of its opposition. The international system of human rights law is primarily directed at States for the universally accepted reason that States are a form of political organisation that are like no other and, virtute officii, they have unique responsibilities for which they are bound by standards higher than those expected of armed opposition groups. Therefore, States are bound by the rule of law and human rights standards, unlike their armed adversaries, and continue to be bound even when faced with grave national threats endangering the life of the community. The reference to the LTTE by way of mitigation becomes misleading when, as in this report, it distorts the very basis of assessment of the human rights challenges by allowing a totally underserved margin of appreciation to the State in its actions against terrorism. Everywhere in the world from West to East, the historical consequence of allowing such latitude has been the encouragement of otherwise illegal if not criminal behaviour by the State: the best illustration for this being the Bush administration’s pursuit of the ‘War on Terror’ under such legislative invitations to abuse like the US PATRIOT Act and practices such as extraordinary rendition and torture in Guantanamo Bay and elsewhere.

The Sri Lankan government’s ‘steadfast insistence’ of its commitment to legality means very little, and perhaps the best response is the famous riposte of Mandy Rice-Davies in the Profumo trial (‘He would, wouldn’t he?’). In an extremely serious environment of deteriorating respect for the law and fundamental rights exacerbated by institutionalised and officially condoned if not sanctioned impunity, the report’s unwillingness to address the critical issues is unpardonable.

At the legal and constitutional level, the serious obstacles to realising the standards of protection of civil and political rights guaranteed by the ICCPR (and its First optional Protocol) in Sri Lanka have been too extensively canvassed elsewhere to rehearse here (see Rohan Edrisinha & Asanga Welikala, ‘GSP Plus and the ICCPR: A Critical Appraisal of the Official Position of Sri Lanka in respect of Compliance Requirements’ in GSP+ and Sri Lanka: Economic, Labour and Human Rights Issues (2008) Colombo: CPA & FES). But it is unsatisfactory and unacceptable that the report does not address questions such as amending the fundamental rights chapter in the Constitution: (a) to include ICCPR rights not presently covered; (b) to improve the textual articulation of recognised rights and widen the scope of protection; (c) to address the deficiencies in the restrictions clause; (d) to repeal incongruous provisions allowing legislation inconsistent with fundamental rights; and (e) to allow at least one appeal in fundamental rights cases. In addition, the failure of the report to address the uncertainty of Sri Lanka’s status in relation to the First Optional Protocol to the ICCPR (which allows individuals right of access to the UN Human Rights Committee), declared to be unconstitutional by the Supreme Court in the Singarasa case, but from which Sri Lanka has not withdrawn, is a critical omission.

As mentioned at the outset, this is not an exhaustive review of the Perera-Fernando report. Within matters discussed as well as in other key areas like gender, the report fails to deal with significant issues, or deal with them inadequately.

Because of the report’s failure to address critical issues and self-evident problems, it is fair to conclude that it shows no understanding of the technical considerations involved in the domestic constitutional and legal incorporation of international human rights with a view to meaningful realisation. The result is a report, if harmless, of little value, which does not promise and cannot portend the kind of essential, meaningful and far-reaching reform that the legal and constitutional framework in Sri Lanka desperately needs for securing human rights. It is, in Sheridan’s phrase, a ‘confounded farrago’ – of obsequious platitudes, tepid recommendations, and witless statements of the obvious. If this is the basis on which the future Sri Lankan National Human Rights Action Plan is to be drafted, the government should not be surprised if it is received as nothing other than yet another cynical gambit for the consumption of the international community, and which will do no good whatever for an increasingly hapless citizenry.