Asian Federation Against Involuntary Disappearances

Cover

Table of Contents

Editorial
- Families of the Disappeared Unite!

Cover Story
-They do not ask for Charity… They demand Justice!

Country Situations

New Hopes for Ending Impunity in China

And Disappearances Continue…

Four-Year Effort To Reveal Disappearances: A Reflection

An Individual Tragedy With Universal Pain

The Human Rights Commission in
Sri Lanka

Photos:
Forum and Leadership Training

Legal Analysis
The UN Negotiation on the Draft Treaty…

Political Analysis
Showdown in Baghdad

Features
Daddy’s Diary

News Features
The Nilo Valerio Foundation’s Coming Into Being

No Closure ‘till Justice is Achieved

The Formation of Indonesian Association…

Year-End Report
– A Summary
2002 Revisited

Literary
Warning

COUNTRY SITUATION
SRI LANKA

The Human Rights Commission in Sri Lanka

by Atty. Priyadharshini Dias *

Law

The Human Rights Commission of Sri Lanka (Hereafter referred to as HRC) was established by Act No. 21 of 1996 as a permanent national institution to investigate any infringement of a fundamental right declared and recognized by the Constitution, and to grant appropriate relief.

Powers of the Commission and its drawbacks.

The Commission is empowered to inquire and report into matters refered to it by the Supreme Court 1. The Act also gives the Commission power to act on its own motion or on complaint made to it by an aggrieved party, investigate into allegations of infringement or imminent infringement of fundamental rights of such person by the executive or administrative action or as a result of an act which constitutes as an offense under the Prevention of Terrorism Act No. 48 of 1979 committed by any person 2.

Unlike court proceedings, which must be invoked by a complaint, the HRC is thereby given the power to act on its own initiative and has the power to respond even without a complaint. It thus, possesses the capacity to ‘search’ for human rights violations. In addition, by exercising to power to set up regional centers, it is able to get physically close to people and thereby, facilitate access to the justice system.

However, the functions of the Human Rights Commission set out in section 10 of the Act is restricted to inquire into and investigate complaints relating to ‘fundamental rights enshrined in Chapter III of the Constitution’ and not ‘human rights’. Therefore, the HRC cannot hear applications relating to the wider range of rights guaranteed under the international human rights law, which includes the ‘right to life’. Thus, the use of the term ‘fundamental right’ restricts the jurisdiction and mandate of the commission, as it is unable to investigate violations of all human rights. In this regard, the HRC has no power to afford remedies to the families of disappeared persons.

The HRC Act in its interpretation section provided for in section 33 defines ‘human rights’ to mean ‘a right declared and recognized by the International Covenant on Civil and Political Rights and International Covenant (hereafter referred to as ICCPR) on Economic and Social and Cultural Rights’. Yet these ‘human rights’ are narrowly defined and other international human rights instruments are not referred to. The Commission is vested with the functions of promoting awareness of and providing education to “human rights.” 3 The HRC Act, in keeping with the Constitution, also restricts the Commission’s powers to infringement of rights by an executive or administrative action. 4

The Human Rights Commission has no power to give binding decisions but its function is limited by Section 10 (b) to provide for solution thereof by conciliation and mediation in accordance with the provisions of the Act.

Section 14 (b) empowers the Commission to investigate an infringement of a fundamental rights as a result of an act which constitute an offense under the Prevention of Terrorism Act No. 48 of 1979. This section appears to target terrorist activities. However, the commission must not lose its independence and must avoid matters relating to political issues.

The Human Rights Commission is also slow in using its powers to assist the government in formulating a new legislation and administrative directives and procedures in the furtherance of the promotion of fundamental rights. This provision should have been used by the Commission with regard to the absence of legal protection given to the disappeared person in our country.

Section 10 (d) of the Act also empowers the HRC ‘to make recommendations which should be taken to ensure that national laws and administrative practices are in accordance with international human rights norms and standards’. This provision should have been used by the HRC to bring about pressure to the government to ensure that the provisions of the Emergency Regulation and Prevention of Terrorism Act are in line with international norms and treaties.

The HRC could bring to the notice of the government of the need to formulate an ‘Act Penalizing Enforced or Involuntary Disappearances, ‘to give constitutional protection to those who face a threat of disappearance and to give effective investigation and justice to those who disappear. The Sri Lankan legal system does not consist of independent investigative and prosecuting bodies in relation to crimes such as disappearances committed by state actors. There is also no protection afforded to witnesses of state perpetrated crimes.

Though Sri Lanka has been a signatory to many international treaties, 5 under the well-entrenched principle of dualism in Sri Lanka’s legal system, many of these treaties have not been given legal force by our domestic legislation. The HRC should use its powers to bring legislation in line with the International Treaties and in the event of our country’s accession to the Rome Statute of the International Criminal Court, the HRC can take steps to comply with the principle of complimentarity set out in Article 1, the Rome Statute. Ratification of this landmark treaty would be an important step taken by our government to put an end to the impunity surrounding the human rights violations in our country.

As a result of its accession to the ICCPR 6, Sri Lanka is legally bound to implement the Human Rights safeguards required by these treaties, including the right to life 7 and the right not to be tortured. 8 Article 4 of the ICCPR clearly states that both rights must be upheld at all times, even “in times of public emergency which threatens the life of the nation’. Sri Lanka is a party to the Geneva Convention relative to the Protection of Civilian Persons in time of war of 12 August 1949 and is, therefore bound by its provisions. Article 3 of the Conventions (common to the four Geneva Conventions and applicable to situations of internal armed conflict) provides for minimum standards of protection to civilians.

HRC can also bring pressure on international community to adopt the UN Declaration on the Protection of All Persons from Enforced or Involuntary Disappearances. (UNDPAPFEID) 9 and the adoption of Amnesty International’s 14 Point Program for the Prevention of Disappearances.

The HRC can use its power to promote awareness of human rights 10 by conducting programmes and seminars for the law enforcement authorities in order to prevent occurrences of disappearances and torture from taking place. Human rights law must not be made ‘law on the books’ but ‘law in action.’ Therefore, it is a prerequisite that law enforcement authorities are educated and sensitized to respect and enhance the human rights of accused while engaged in the duties of protecting rights of society at large.

Possible remedies

(i) Where an investigation conducted discloses the infringement or imminent infringement of a fundamental right by executive or administrative action, the commission has the power to refer the matter fro conciliation or mediation.

(ii) If the parties object to the above or where it was not successful, the HRC can recommend to appropriate authorities that prosecution or other proceedings be instituted against the person or persons infringing such fundamental rights. 11

(iii) Refer the matter to the court having jurisdiction to hear and determine the same. 12

(iv) Make recommendations to the appropriate authorities or persons with a view to preventing or remedying such infringement or continuation of such infringement. 13

(v) Make recommendations to reconsider then act or omission, decision, and the practice giving rise to infringement or imminent infringement of the fundamental right to be rectified and that reasons for the same be given. 14

Is it an adequate remedy?

Apart from the above safeguards, the HRC is not empowered in law to give binding decisions, prosecute or bring to the notice of Attorney General appropriate cases to consider filing of indictments under the Penal Code, or order the release of persons. HRC is vested with only recommendatory powers and lacks power to enforce orders or take action regarding the breach of their orders. Section 21 of the Act provides for the offense of contempt committed against and disrespect of authority of the Commission shall be punishable by the Supreme Court as though it were an offense of contempt committed against it. The HRC has also the power to make a full report of the facts of noncompliance of its recommendations by the authorities to the president who shall cause a copy of such report to be placed before the parliament. 15 However, these measures have not been sought by the HRC for noncompliance of its orders.

As a means of giving amnesty to witnesses including perpetrators who confess their own participation in human rights violations, the final report of the Commission of Inquiry into involuntary removal or disappearance of persons in the Western, Southern and Sabaragamuwa Provinces recommended that the Human Rights Commission be directed to set-up machinery by way of a Special Committee of eminent persons to entertain and record evidence of and to recommend an amnesty to witnesses from within the structures, who within a stated period, confess to their own participation in the violation of Human Rights at issue and give full evidence in respect of the whole incident including orders received. The provisions of the South African Truth Commission maybe considered a model. The Commissioners considered that this would quite properly considered to fall within the Human Rights Commissions duty to advise, etc. The reports of the three Commissions were also recommended to be made available to the Human Rights Commissions for this purpose. 16

The HRC commission has not been given any power to promote the economic and social rights of the people of Sri Lanka. 17 Over the years, there have been many statements made internationally on the need to recognize and give equal weight to civil and political rights as well as to economic and social rights and an attempt should be made to promote, respect and fulfill both these sets of rights. These statements have affirmed that all human rights are equal and that there should be no discrimination between these different categories of rights. Despite the rhetoric, civil and political rights continue to be treated differently from economic and social rights.

It is important that the Sri Lankan HRC make a contribution towards the realization of economic and social rights. The HRC needs to look at creative ways at realizing these rights. It should also need to take a lead in trying to promote NGOs and the State to act along similar lines. The importance of access to education, adequate housing, health care, and water, cannot be over emphasized in our social context. For most of our population, they are important rights and for some vulnerable groups like displaced persons and women they assumed an added significance. 18

Powers relating to the monitoring of detention camps.

The HRC Act requires security officials to inform the Commission forthwith or within forty-eight hours when a person is detained under the PTA and under Emergency Regulations, the place of detention and the release or transfer of such person to another place of detention. 19 The Commission is also given wide powers to inspect places of detention and make examinations and ascertain the conditions of persons so detained. 20 Officers who failed to inform the commission of the fact of arrest and detention and obstruct the inspectionof places of detention are deemed to have committed an offense punishable by the Magistrate’s Court. 21

Drawbacks

The Commission should evolve a process whereby a security officer who fails to inform the former about the detention of a person can be prosecuted. The HRC does not effectively carry out the power of monitoring the welfare of detainees. Amnesty International has pointed out that in ascertaining the welfare of the detainees, the members of the Commission did not utilize any standard minimum rules similar to the Sri Lankan Prison Ordinance or Prison Rules. Instead, they referred only to presidential directives and other safeguards laid down in the emergency regulations, the Human Rights Commission Act, etc. the constitution and other legal provisions prohibiting torture. 22

The Human Rights Commission, which in principle could play an important role in investigating and preventing incidents of disappearances taking place seems to lack the necessary authority, political and financial support to carry out this task in an efficient manner.

The existence of a body that can visit detainees is an important safeguard against torture and disappearance. However, the HRC has been unable to perform this task adequately because it does not have sufficient staff. The HRC should have taken the initiative regarding the unauthorized places of detention in Sri Lanka and reported these facts to the President, who can place the report before the Parliament. However this procedure does not appear to have been followed, so far.

Further factors which hamper the functioning of the HRC is the lack of adequate staff for its proper functioning, including the regional officers. Though the HRC was created as an independent body, the commission has to rely entirely on the government resources to maintain the same. 23 Furthermore, theHRC has to get approval from the Presidential Secretariat for cadre provisions and other necessities.

It has been reported that the HRC provided a figure of 1,146 missing in the year 2000, of whom 912 persons have been traced. However, the HRC could not say whether the remaining 234 could be categorized as disappeared. “Repeated request for a reply failed to get any response from HRC. It was not possible to find out from their records whether any of the 912 people who had been traced has experienced periods of unacknowledged detention.” 24

Conclusion

The Human Rights Commission is an institution set up by the State, funded by the State, yet possessing an autonomy from the State so as to be able to investigate the State. The state is the biggest human rights violator, in most countries of the South and the Commission should have the power, not restricted in any way, to monitor and scrutinize the State’s performance in relation to human rights issues.

It is a paradox that the credibility of the institution comes from the fact that it is state sponsored (through legislation) and state-funded. Its credibility as an institution will also depend on the nature of its activities and the impact of its work. Among its major functions are the scrutiny of State action, the education of state actors and the advising of state entities. 25

The HRC must thereby revamp itself to live up to the expectations with which it was established. The HRC Act has to be further amended to empower itself to maintain more independence and enforcement powers. Due to its failure to fulfill people’s hope and aspirations, the HRC has been criticized as being a “lion without a teeth.”

* Atty. Priyadharshini Dias is presiding in the Superior Courts of Sri Lanka. She appeared before the Court of Appeal and Supreme Court for the aggrieved party in the Embilipitya Students’ Disappearance.

(Note: This article was written in early 2002. Updates on this will be published in the next issue of The Voice.)

1 HRC Act Section 12 (1)
2 HRC Act Section 14
3 HRC Act Section 10 (f)
4 HRC Act Section 14 (a)
5 International Covenant on Civil and Political Rights (ICCPR), The International Covenant on Economic, Social and Cultural Rights (ICESCR), The Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), Convention on the Elimination of All forms of Discrimination against Women (CEDAW), International Convention on the Elimination of All forms of Racial Discrimination. (CERD), Convention on Rights of the Child (CRC), International Convention on the Protection of Rights of All Migrant Workers and Members of their Families, Convention on Prevention and Punishment of the Crime of Genocide.
6 Acceded on 10 June 1980, signed the 1st Optional Protocol on 3 October 1997
7 Article 6, ICCPR
8 Article 7 of the ICCPR and the CAT
9 Adopted by the UN General Assembly in its resolution 47/133 of 18, December 1992.
10 HRC Act Section 11 (f)
11 HRC Act Section 15 (3) (a)
12 HRC Act Section 15 (3) (b)
13 HRC Act Section 15 (3) (c)
14 HRC Act Section 15 (4)
15 HRC Act Section 15 (8)
16 Sessional Report V-1997 page 69-70
17 Article 184 (3) of the Constitution of South Africa (1996) mandates that every year the South African HRC must “Require relevant organ of the State to provide the Commission with information of the measures that they have taken towards the realization of rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.
18 “Great Expectations: The Sri Lankan Human Rights Commission” Mario Gomez LST Review Volume 9 Issue 131 September 1998 page 30
19 Human Rights Commission of Sri Lanka Act, No. 21 of 1996, Section 28 (1)
20 Section 28 (2)
21 Section 28 (3)
22 Sri Lanka: Torture in Custody’ Amnesty International, ASA/37/99, June 1999, P.30
23 HRC Act Section 29’ state shall provide the commission with adequate funds.”
24 The Phenomenon of Disappearances in Sri Lanka.’ Sri Lanka: State of Human Rights – 2001, Law and Society Trust. page 105
25 “Great Expectations: The Sri Lankan Human Rights Commission” Mario Gomez LST Review Volume 9 Issue 131 September 1998 page 30

VOICE April 2003