The Asian Human Rights Commission strongly supports the call for a human rights monitoring mission by the United Nations as a measure to resuscitate the severely damaged criminal investigation capacity of the Sri Lankan policing system.
The state, as the sovereign, owes an obligation to investigate into all crimes irrespective as to whether these are done by organised criminal gangs, terrorists or state agencies themselves. This obligation implies that there needs to be a competent and impartial criminal investigation branch within the policing system which has not been corrupted or impaired by political interference. There is consensus within Sri Lanka that the capacity of the police investigation system has been gravely diminished due to political interference over several years and that its internal capacity for investigations has become extremely limited. When it comes to organised crimes, acts of terrorists and also extrajudicial acts of the military and the police, the police investigation system has not demonstrated any capacity for effective investigations in recent years.
The inability to ensure effective criminal investigations is a fundamental failure of the state in ensuring security to its people. This situation needs to be cured immediately. A United Nations human rights monitoring body can assist the revival of this system and without such assistance there is no predictable way of how such a revival might happen.
The United Nations High Commissioner for Human Rights reiterated her call for human rights monitoring in her statement to the Human Rights Council on December 10th 2007.
I was very pleased to visit Sri Lanka from 9-12 October at the invitation of President Rajapakse and am grateful for the broad access I was given to Government representatives, political parties and members of civil society, including the troubled northern region of Jaffna. I regret not having the opportunity to meet with representatives of the Liberation Tigers of Tamil Eelam (LTTE), as I would have liked to convey to them directly my deep concern with their serious violations of human rights and humanitarian law, including recruitment of children, forced recruitment and abduction of adults, and political killings.
During my visit, I paid special attention to the issue of abductions and disappearances, which have been reported in alarming numbers over the past two years. While the Government pointed to several initiatives it had taken to address these issues, there has yet to be an adequate investigation or credible public accounting for the vast majority of these cases. I am also concerned about safeguards for those detained under the emergency regulations, including during recent mass arrests in Colombo.
Regrettably, the various national institutions and mechanisms that could be expected to safeguard human rights have failed to deliver adequate protection. In particular, the Human Rights Commission of Sri Lanka, which had previously enjoyed a proud reputation internationally, has had its independence compromised by the irregular appointment of its Commissioners and the credibility of its work has suffered. Further, despite high expectations, the special Commission of inquiry appointed by the President more than one year ago to investigate high profile killings and disappearances has yet to complete any of its cases. The Eminent Persons invited to observe the Commission have expressed concerns about its compliance with international standards.
In a highly polarized context, where human rights information is easily manipulated for propaganda gains, there is a critical need for an independent actor to gather information and publicly report on the human rights situation. For this reason, I have suggested that the Government would benefit from the support of a presence of OHCHR in the country, with a full mandate incorporating technical assistance and public reporting. Since my visit, my Office has engaged in discussions with the Sri Lankan authorities on possible models involving an OHCHR presence working alongside national structures. We have reached no agreement on a formula by which independent, public reporting by OHCHR could be ensured. OHCHR will continue to assist the authorities in strengthening the national human rights system, but this will fall short of meeting the critical protection gap.
The phantom limb in human rights protection
A phantom limb is the sensation that an amputated or missing limb is still attached to the body and is moving appropriately with other body parts. The pronouncement of the Sri Lankan government that it has adequate local mechanisms to deal with investigations into human rights violations reflects a similar mentality. The recent statement of Mahinda Samarasinghe, the Minister for Disaster Management and Human Rights is the latest expression of this same mentality. Where are these investigation mechanisms, one may ask and the answer would not be different to one that might come from an amputee who feels as if his missing limb still exists, like the missing limb a credible investigation mechanism simply does not exist.
The amputation of the investigation mechanism for human rights abuses has taken place over a long period of time with the operation of emergency regulations, anti terrorism laws and the deliberate dismantling of the basic institutions of public administration including the institutions of the administration of justice. The large scale killings that took place in 1971 and 1986 to the 1990 period in the south and the continuous repression in the north and east from 1978 to the present day required that no credible investigations could be allowed into allegations of human rights abuses as it would cause unrest in the military and this would affect the stability of the ruling political regimes. The limitations imposed on investigations naturally infected the prosecution system under the Attorney General’s Department, which was often required to cooperate in the cover up of the perpetrators and guarantee them impunity. The independence of the judiciary was crushed by the pressures from the presidential system as well as through legal limitations imposed by various constitutional amendments and emergency laws.
The former Supreme Court Judge K.M.M.B. Kulatunga recalls a time when Sri Lanka did have a competent criminal investigations capacity within its police, even to deal with very serious crimes as evidenced in many cases reported in the new law reports. These included political cases such as the assassination of Prime Minister S.W.R.D. Bandaranaike and the attempted coup of 1962. However, this system was seriously interfered with in order to facilitate the causing of extrajudicial killings, disappearances and torture on a large scale through the police, military and paramilitary groups. Today the system does not have the capacity to even investigate ordinary crimes let alone those crimes done with the connivance of political authorities for military purposes. The ugly situation that prevails is manifested through the constant killing of arrested persons in police custody, allegedly whey they try to throw grenades at police officers while they are taken to find concealed objects. The falsification of information in order to justify crimes committed by state agencies, which would appear to any reasonable person as pathetically ridiculous, is offered in the name of the sovereign state of Sri Lanka by the state agents and its propaganda units.
The phantom limb on criminal investigations in Sri Lanka is manifest daily in many of the statements that come out under various propaganda units such as the Peace Secretariat, the Geneva Consulate, the office of the Minister of Disaster Management and Human Rights, the Secretariat of Defense and even in the name of the President himself. The claim of the existence of a competent and credible criminal investigation capacity is offered both as a cover up for the incapacity and unwillingness to investigate human rights abuses, as well as to counteract any calls for assistance to the Sri Lankan government by the international community by way of human rights monitoring through the United Nations. The phantom limb mentality prevents the finding of real solutions to the real problems that make Sri Lanka one of the most lawless places in the world.
The Asian Human Rights Commission in the past ten years has consistently pointed out the way the Sri Lankan criminal justice system has become dysfunctional (kindly see http://www.ahrchk.net/pub/ – Sri Lanka’s Dysfunctional Criminal Justice System). As long as this situation remains, life will remain a nightmare to all civilians in the country. To this civilian nightmare is now added the targeting of civilians by the LTTE, the government as well as other paramilitary groups which operate freely in the country. This climate is also unscrupulously used naturally by the criminal elements who try to profit from this situation by way of all sorts of crimes including kidnapping for ransom.
It is not possible to protect the people with a phantom limb. The sooner this illusion is demolished the better it will be for all the people of Sri Lanka.
Human rights monitoring and the independence of the judiciary
In the reply of the Sri Lankan government to the High Commissioners speech there was an insinuation that such monitoring would infringe upon the sovereignty of Sri Lanka and particularly the independence of the judiciary. There is no basis at all to see a conflict between support for investigations into human rights abuses by the United Nations and the independence of the judiciary. The judicial branch will have all the powers it presently has for pre-trial, trial and appeal functions, as well as other functions under writ jurisdiction and fundamental rights. Human rights monitoring is about how the investigations are done and not about how courts conduct their affairs under the laws of Sri Lanka. The only problem that the human rights monitors would address is the very absence of such investigations, which prevails at present due to problems within the policing system. By engagement in such investigations the present impasse can be addressed and the police themselves will benefit when the likelihood of political interference into investigations is removed. Once United Nations human rights monitors can address the limitations imposed on the Sri Lankan police for political and other reasons, competent Sri Lankan criminal investigators themselves will be able to play their role and regain their lost professional prestige and dignity.
Therefore we call upon the citizens of Sri Lanka to avail themselves of this invitation made by the United Nations High Commissioner for Human Rights in order to address one of the problems that all citizens are well aware of in terms of the defective policing system of Sri Lanka. Here the country has an opportunity to deal with the problem that has troubled the nation for several decades now. If the countrys criminal investigation section is resuscitated it will be possible for the people to deal with such massive problems as corruption. To defeat corruption is not to defeat sovereignty but to assert it. It is quite clear that what the spokesmen against human rights monitoring are concerned about is not defending the sovereignty of Sri Lanka but defending a bad policing system, abuse of power and the massive corruption that prevails within the country.
