A Determination to Denigrate - 20th December 2007

by Rajiva Wijesinha

One of the saddest aspects of the recent determination to wag fingers at Sri Lanka is the failure to look at facts in asserting values. This became apparent in the recent attack on the National Human Rights Commission, led by Human Rights Watch, which earlier failed to respond to a detailed critique of the falsehoods it conveyed in a sensationalistic press release designed to denigrate the Sri Lankan armed forces. The fact that there were no civilian casualties in the army’s operations in the East, the fact that the United Nations High Commission for Refugees in Colombo had been positive about the government’s resettlement programme, meant nothing in comparison with the determination to join with various Sri Lankan NGOs, funded massively under an earlier government, in wagging fingers at a government that refused to dance to their tune.

The following assertion is typical of the falsehoods perpetrated by such institutions: “Sri Lankan government claims that its Human Rights Commission is a strong and independent institution ring hollow,” said Elaine Pearson, deputy Asia director at Human Rights Watch. “Unfortunately, Sri Lanka lacks credible domestic institutions to address human rights violations.”

Now the Sri Lankan government does not claim anything of the sort. The Minister for Disaster Management and Human Rights has repeatedly called for technical assistance to strengthen Human Rights Protection in Sri Lanka. He had an Advisory Committee to which he had appointed several representatives of NGOs, who seem to have turned up rarely. It was only after it had been pointed out, while they were wagging fingers at the government, that they had failed to assist as requested, that four of the more theatrical of them resigned.

Even more sadly, the UN itself seems in 2006 to have welshed on its agreement to help to clear the Backlog. According to the current Chairman of the Human Rights Commission, ‘The UNDP (Dfid) backed out of the Project after even signing the agreement to fund the Backlog Project from 01.04.2006’. The former Senior Human Rights Adviser in the UN office explained with regard to another proposal, to have UN volunteers assisting in branch offices, that the donors had withdrawn.

His explanation was that donors felt the HRC was not independent. This assertion was based on the fact that its members had not been recommended by the Constitutional Council as required under the 17th Amendment to the Constitution. However, that Council was not in existence, since the nominating authority, the Speaker, had failed to nominate the full quota of members.

Unfortunately perhaps, according to a Supreme Court ruling, made in an earlier era by a judge who has never been described as supportive of the current government, in Sri Lanka an official body which has no designated quorum cannot function unless all its members are in place. Given this finding, the Constitutional Council cannot exist unless and until the Speaker nominates its final member.

This the Speaker has not done. He may have good reason for this, given the uncertainty about which party has the right to recommend, but the fascinating part is that no one who preaches about the lack of a Constitutional Council either criticize the Speaker or use a legal remedy to enjoin him to appoint. This leads to those who do not understand our Constitution, nor the doctrine of Separation of Powers that is applicable with knobs on here given that the Speaker belongs to a different party from the President and the Government, claiming that it is the President’s fault that the Constitutional Council has not been constituted.

The failure to seek a judicial remedy in this instance is designed perhaps to substantiate the claim, asserted by for instance a staffer at the EU who is supposed to work in the Human Rights division, that the Supreme Court gives politically motivated decisions. The idea that the current Chief Justice will be dictated to by others is arrant nonsense, as so many recent judgments show, and certainly no one has been able to fault conclusively his reasoning in any of the cases on which he has pronounced. But, despite all this, Human Rights Watch has the temerity to claim that “Unfortunately, Sri Lanka lacks credible domestic institutions to address human rights violations.”’

To return to the Human Rights Commission itself, given that there was no Constitutional Council, the President could have refrained from making all the appointments for which that Council was supposed to send him nominations. That too is a nonsensical position, for a President who refrained from appointing essential officers of state, such as judges and members of the Public Service Commission, could probably have been legally enjoined to make such appointments. Interestingly there has been no public outcry about such appointments. However, unless one believes that the Human Rights Commission is not important, the argument that he should have refrained from appointing this particular Commission, whilst appointing all the rest, is untenable.

Thus, when Human Rights Watch claims that ‘In May 2006, Sri Lankan President Mahinda Rajapaksa personally appointed five commissioners in violation of the Sri Lankan constitution. Article 41B of the constitution specifies that appointments to the NHRC can be made only after a recommendation from the Constitutional Council, a multi-party body established by the constitution’, it ignores the fact that, since the Constitutional Council did not exist, he had in effect no alternative. The fact that no other remedies have been sought for this situation, to endeavour to create the Council, suggests that it is not Human Rights that are important, but rather the determination to wag fingers at the President alone, not the Speaker, not the parties not in the Government which will not agree on a nominee, not the opposition which has delayed amendments to the Constitution. Indeed even the bill to expedite by establishing a quorum the activities of the Commission of Inquiry, now also debarred from sitting without its full complement of members, has been delayed despite the efforts of the Government to treat it as urgent.

But people believe what they want to believe. The world at large prefers to believe the assertions of the Sri Lankan opposition rather than study the Constitution and judicial precedents. So the urgent pleas of the Government for assistance to improve its mechanisms has gone unheeded. But when finger wagging is the purpose, prophecies necessarily end up being self-fulfilling.

Rajiva Wijesinha

Secretary-General

Secretariat for Coordinating the Peace Process