(The Sri Lankan government lost its bid to retain its seat in the UN Human Rights Council yesterday, May 21, as it came under intense criticism from many quarters on its human rights record. This statement examines the implications of this issue for the future).
The defeat of Sri Lanka to retain a seat in the Human Rights Council is a clear indication that the world is beginning to learn of the enormous repression that exists within the country and is condemning it unequivocally. That the country with the largest number of disappearances and widespread lawlessness has not been given a place in the leading body on human rights within the UN system is not a surprise. It is to be hoped that more and more critical examination of the members seeking election to the council will take place in the future.
For all those who are concerned in making a change in the extremely repressive system that exists in Sri Lanka with widespread lawlessness in all parts, the south, north and the east, this should be a moment for sombre reflection on more determined attempts that need to be taken within Sri Lanka itself to achieve the changes needed. There has been no dearth of material, reporting, analysing and making recommendations for the needed changes. However, the present regime which has perfected the art of denial that earlier regimes had also been responsible for, has not taken any of these criticisms seriously. Instead attacking the critics has been the preferred method of dealing with human rights. Therefore, perhaps this should be a moment to recall where the most prominent defects are, hoping that at least now, the government will take greater notice of this most fundamental problem.
1. The Sri Lankan constitution of 1978 is fundamentally flawed and has removed the possibility of a liberal democratic form of governance. This constitution places the executive in a controlling position of the parliament and the judiciary and makes the executive president the sole arbiter of all fundamental decisions in the country, thus displacing the possibility of a consultative process. The limited reforms adopted in 2001 by way of the 17th Amendment to the Constitution were rejected by this regime through its failure to appoint the Constitutional Council as required by the constitution. This constitutional crisis prevents any serious remedial measures being taken on any of the major problems affecting the country.
2. The criminal justice system of the country, which is the basis through which the security of persons is protected, has been so thoroughly neglected and undermined that today it fails to deal with ordinary crime as well as gross abuses of human rights for which the agents of the state themselves are responsible. The result is that the policing systems, through which the criminal investigations are to be done have so badly collapsed that they do no longer enjoy the confidence of the people. This is not something that started under this regime but, this regime is guilty of allowing the situation to degenerate further while being fully aware of the problem, as evidenced by the statements made by the president and others in the government when they were in the opposition. Today there is a widespread feeling of insecurity of all persons throughout the country not just because of possible terrorist threats as is made out very often, but due to the collapse of the system of protection within the country. Also the Attorney General’s Department, which exercises the role of the prosecutor, has completely failed, as evidenced by the 4 percent success rate in ordinary criminal prosecutions, and no success at all in the prosecution of persons for such gross abuses of human rights such as forced disappearances, custodial killings, abductions and the like. The judiciary has suffered due to executive control under the new constitution and no longer holds the prestige that it once did.
3. The abuse of the powers of arrest and detention, particularly under anti-terrorism laws and emergency laws has created an intense fear psychosis in the Tamil minority in particular, who feel that under the pretext of measures taken against the LTTE the Tamil minority as a whole is being held hostage.
4. The equation of the terrorist attacks on people with the abuse of rights by state officers has virtually prevented the possibility of credible inquiries against even the most indefensible attacks on civilians as symbolised by the Trincomalee student killings and those of the 17 aid workers in Mutur. A more responsible approach to hold the state officers accountable is the harshest form of criticism that can be made against terrorism. When attacks by terrorists are used to build psychological support for similar or worse forms of retaliation, it is the entirety of the people that suffer. In an ultimate sense a nation consists of, amongst other things, the public institutions and their credible functioning. There is nothing more demoralising to a people than to lose faith in the very foundations of their institutions. No terrorist organisation can do as much damage to a nation as a government can do when it abandons its responsibility to keep the state institutions functioning and serving the people under all circumstances.
5. Talking about the Human Rights Commission of Sri Lanka (HRCSL) as the apex institution for the protection of human rights is sheer nonsense. The improvements necessary to achieve respect for human rights has to happen within the investigation divisions of the state, the prosecuting divisions and the judiciary. Without this the HRCSL cannot do anything more than a scavengers job. Without the emphasis being placed on where the cure lays, which is the basic system of justice within the country, a proper debate cannot take place for the improvement of rights.
6. There is no doubt that Sri Lanka faces a serious terrorist threat from the LTTE. However, the origin of the problem as does the solution lies in an honest attempt to recognise the minority rights and create a state structure where the majority and minority can coexist without considering each other a threat. It is the state that can create the climate within which a vibrant democratic system can, in turn, create the conditions for the realisation of the rights of the majority as well as the minority. The repression that is caused under the pretext of controlling terrorism harms, not only the minority, but the entire population.
7. No amount of condemnation and punishment can be of any use unless there is a constructive engagement to make things better for the future. A nation that separates itself from the rest of the world under various pretexts only risks isolation and the bitter fruits of isolation can be seen by what the Burmese people are facing in the midst of a natural disaster caused by Cyclone Nargis. When the state does not take a constructive approach to remain credible every disaster, be it natural or economic or even environmental, can degenerate into a manmade disaster. Prudence requires the taking of appropriate measures when things have gone wrong. This time should be a moment where the people themselves must prudently consider what they want for the future. It is true that the present regime, like the previous regimes in the recent times, particularly since 1978, have taken the country down a disastrous path. A politically prudent approach to the international rebuff suffered at the Human Rights Council by the Sri Lankan government is for the people to enter into a critical dialogue with all the political parties on all the fundamental issues that are facing the nation.
Now that the international community has begun to recognise the human rights crisis in Sri Lanka we urge the Human Rights Council and the United Nations to engage constructively with the Sri Lankan government, as well as the people so that by a process of intense vigilance this darker course of history can be changed for the better.
