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SRI LANKA: International human rights agencies failed to notice the collapse of the Sri Lanka's public institutions of justice

December 9, 2011
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A Statement by the Asian Human Rights Commission on the Occasion of the International Human Rights Day, December 10, 2011

The international community, including leading human rights agencies and organisations, has failed to understand the depth of collapse of rule of law in Sri Lanka and have failed to make any effective intervention in this regard.

International conventions for several decades now have centered around minority rights and more recently on alleged war crimes. However, violations of minority rights are only a part of the abysmal lawlessness that prevails in the country as a whole and this affects both the majority and the minority. These violations cannot be separated in any meaningful manner. Without addressing the general conditions that have lead to collapse of rule of law, none of the violations of the human rights, including harsh violations of rights of the Tamil minority, can be resolved. It is impossible to remove a part out of the total problem and treat it successfully.

The heart of the problem is the 1978 Constitution and the practices that have accumulated over the last 33 years under this Constitution. The problem of this Constitution essentially, is that it places the executive president above the law and outside the jurisdiction of courts. This means anything that the executive president wants to keep outside law, can be kept outside the law. This applies to all, including the minorities.

It is a sad reflection on the global human rights movement that despite many local human rights organisations and regional organisations like the Asian Human Rights Commission having stressed and emphasized this constitutional issue, not a single international agency or organization has taken up this issue in their interventions and their statements. The issue of constitutionally generated lawlessness has gone unnoticed.

As a result the other issues raised by the international organisations are incapable of achieving any positive result. When, the most central element leading to violations is ignored it is naturally not possible to find solutions to the other problems raised by these organisations. The ultimate beneficiary of all this are the violators of human rights and the political machine which creates the environment for the gross abuse of human rights.

Why did the international community fail Sri Lankan citizens so badly on the violations of their rights? This question may be answered by many persons in different ways. It is perhaps better to raise one fundamental conceptual issue which may be at the bottom of this failure despite of many well intentioned people trying to contribute in many ways for the solving of human rights problems in Sri Lanka.

This conceptual issue is well articulated by an American lawyer who has been involved in litigation in many less developed countries and has been able to see the absence of the functioning public institutions of justice. In a speech made at Colombia University he identified the problem thus:

"Looking back at the story, one can see that two generations of global human rights work have been predicated, consciously or unconsciously, upon assumptions of a functioning public justice system in the developing world which, if incorrect, effectively undercut the usefulness of those efforts for their intended beneficiaries. Now, absent an effective enforcement mechanism, the great work of the first two generations of the international human rights movement can deliver to the poor only empty parchment promises."

Today the international movement for human rights finds it difficult to move away from the work of the first two generations, that is articulation of international norms and encouraging domestic legislation into the stage of ensuring functioning public institutions for justice.
   
Instead of undertaking the difficult task of the study and the understanding of situations which are different to the situation in developed democracies where functioning public institutions of justice have already been established through, perhaps the work of over two centuries. The developed country-based human rights organisations assume that similar functioning public institutions of justice as theirs own exist elsewhere.

Based on that assumption when they hear reports about violations of rights they put forward the demands to investigate, prosecute and pay compensation. These demands do not lead to any real response from the governments of less developed countries. Some countries, for various reasons, try to give an appearance of compliance which is often highly appreciated by the persons from more developed countries thinking that such gestures are meant well and that the violations will be addressed to some extent at least.

Increasingly, more of the governments of the less developed countries completely ignore the formula from the developed countries for investigation, prosecution and payment of compensation. The former Special Rapporteur for torture and ill treatment, Manfred Nowak, on the basis of a review of recommendations made to several countries as a Rapporteur concluded that none of his recommendations had been implemented. If similar reviews are made into the recommendations made by different agencies of the United Nations human rights agencies to the governments of less developed countries the result is most likely to be no different than that. When one of the special representatives for the UN Secretary General for Cambodia visited Cambodia for one of his visits the United Nations human rights centre made a list of recommendations the representative had made to the government earlier. There were nearly 50 such recommendations. Against each recommendation there was a column under the heading 'actions taken'. In that column under each recommendation the comment recorded was: No action.

Similarly if one were to collect the recommendations made by the office of the UN High Commissioner for Human Rights, by various Rapporteurs such as that of the Rapporteur against extrajudicial killings, torture and ill treatment and discrimination against women, just to take a few, it would become clear that the formula, to investigate, prosecute and pay compensation has not resulted in any positive action. The same is true about the recommendations from the new Human Rights Council during the Universal Periodic Review and other occasions.

The Sri Lankan government openly flouts the rights of all its citizens and boasts about it. People have no way to seek redress as the system of administration of justice has been openly sabotaged by the government.

The full report is available for download at http://www.humanrights.asia/resources/hrreport/2011/AHRC-SPR-011-2011/view.

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