Kishali Pinto Jayawardene
Even before the Rajapaksa Presidency passed the 18th Amendment, we had been reassured by successive Governments (with more than a hint of perfunctory condescension), that Sri Lanka’s Rule of Law institutions were working well, even if not perfectly well.
Administering last rites to governance
Those reassurances contrasted strangely with the actual realities. Weak laws were passed with deliberate contradictions that made it difficult for institutions created therein to be structurally independent. Furthermore, those venturesome enough (or perchance indeed foolhardy) to take on the challenges of working in these bodies were constantly sniped at from political quarters, debilitating their integrity and delegitimizing the institutions that they were a part of. At its highest level, the judiciary remained plagued by clouds of political controversy that finally enveloped the very Office of the Chief Justice in their deadly reach and which has never quite dissipated since then.
To be clear, the 18th Amendment passed by a Rajapaksa Parliament merely administered the last rites with a flourish to the sad remains of independent institutions established with the proud ambition of safeguarding rights of Sri Lankans. What occurred thereafter reflected, of course, the ugliest of scenarios when retired judges, lawyers and other more dubious characters, (including some purporting to lay claim to academic credentials), openly and shamelessly colluded with the political establishment which had, by that time, begun to violate rights with an exuberance that exceeded even its none too saintly predecessors.
An immediate victim of these tumultuous happenings was the Human Rights Commission of Sri Lanka (HRCSL) in regard to which public disapproval was unprecedented at the time. As the HRCSL looked determinedly away from its statutory task of speaking up for unfortunate victims, including those who had been brutally tortured from the North to the South, faith in its independent and impartial functioning plummeted to the lowest ebb.
Reasons for downgrading of HRCSL
It was at this point that the sub-committee on accreditation of the International Coordinating Committee (ICC) of National Human Rights Institutions, UN Office of the High Commissioner for Human Rights decided to downgrade the status of the HRCSL from category “A” to category “B” following an investigation commencing in March 2007 conducted pursuant to section 3(g) of the ICC Rules. This week, Sri Lanka celebrates the reversal of this downgrading following monitoring of the HRCSL’s performance during the past three years, with the country’s premier human rights watchdog again being accredited with ‘A” status.
Meanwhile, it would do well at this point to remind ourselves as to the exact reasons which led to the downgrading at the time. This may serve as a good precautionary warning as the country faces the vagaries of an uncertain future given the manner in which Sri Lanka’s two political parties appear to be emulating Nero who famously fiddled while Rome burnt.
The ICC embarked on an investigation that looked at two key questions. The first question related to whether the appointment of Commissioners was in compliance with the law under which the Commission was established. Secondly and as was articulated at the time, it was a question as to whether ‘the actual practice of the Commission remains balanced, objective and non-political.’
The review process entertained submissions from the HRCSL itself, the Government and civil society organisations in regard to the above two questions. The reasoning of the Sub-Committee in arriving at the final decision to downgrade was based on an application of the Paris Principles which had been adopted by the United Nations on the agreement of all states in 1993. This constitutes the overarching framework for measuring democratic compliance of national human rights institutions and stipulates autonomy from Government, independence guaranteed by statute or by the Constitution, a broad mandate and competency based on universal human rights norms and standards, pluralism, adequate resources and adequate powers of investigation.
Deep satisfaction regarding the re-accreditation
Using those standards, the Sub-Committee observed that firstly, that the appointment of members of the Commission had been effected without recommendation of the Constitutional Council as prescribed in the Constitution. Secondly it was concluded that the Commission did not take measures to ensure its independent character and political objectivity, as required by the Paris Principles. As we may recall, one notable fact was the then Commission’s decision to stop inquiring into complaints of over 2000 disappearances of persons in the past, viz,“for the time being, unless special directions are received from the government.”
Of particular interest was the admonition issued by the ICC that, in times of extraordinary unrest, the burden is greater on a national human rights institution to conduct itself with a heightened level of vigilance and independence in the exercise of its mandate. It was assessed that the HRCSL at the time had failed their statutory functions on multiple fronts. Its failure to issue annual reports on human rights as required by the Paris Principles was a further factor.
So it is no question that the reversal of this damaging downgrading is a matter for deep satisfaction. That said, the institutional strengthening of the HRCSL still needs to take place, specifically in regard to the efficacy of its decisions which need to go beyond voluntary compliance by state bodies. The necessity for the State to provide adequate resources to enable the HRCSL to function effectively is obvious. The Paris Principles point out that “[f]inancial autonomy must be accompanied by adequate, continuing funding”. That principle must be observed to the letter.
Stop games of political brinkmanship
Contradictions and inconsistencies that enable the systematic deterioration of national governance institutions cannot be permitted once more. The damage caused thereby goes beyond the individuals concerned, President or pauper. Instead, it takes decades to rebuild public confidence in institutional integrity as we have seen very well.
While the 19th Amendment did take welcome steps in that regard including bringing a Constitutional Council back (minus its majority of independent members), that Amendment is beset with internal contradictions. Perhaps, the narrow exercise of focusing on that rectification may bring positive results rather than a wholesale constitutional reform process, which now appears to be dead in the water, so to speak.
Whatever it may be, the game of political brinkmanship that the country’s politicians are engaging in must stop. The one sure consequence is that more and more corruption will be evidenced; more and more human rights abuses will take place. Respect for governance and the protection of human rights must dominate the national debate, rather than the shrill squawking of political opportunists.
That is an imperative without a doubt.