Sri Lanka has presented its candidature for membership within the United Nations Human Rights Council. The 47-member Council replaces the now defunct UN Commission on Human Rights, which was abandoned in late March 2006 due to the fact that, amongst other things, it was failing to adequately protect human rights because its members included states that are grave violators of human rights. These states sought membership in the Commission more to defend or cover up their own records than to promote and protect human rights. Membership within the new Council has purportedly been designed to prevent the inclusion of the worst violators of rights.
The election of the Council’s initial members is to be held at the United Nations General Assembly on May 9, 2006. It is vital for the credibility of the Council that its members be of the highest available standards, in order to show a marked departure from the failings of the Commission and to give credence to the lofty statements that have accompanied the process of forming a new apex international human rights body.
It is therefore evident that the membership of states that have continually and flagrantly violated rights and ignored United Nations recommendations cannot be accepted. The endemic use of torture in Sri Lanka and the lack of implementation of recommendations made by the UN Committee against Torture are examples that cannot be ignored. Sri Lanka’s membership will surely make a mockery of the new Council and scupper the much vaunted aspirations for this system from the outset.
To date, the following states have presented their candidature for one of the 13 seats on the Council available to Asian nations: Bangladesh, Bahrain, China, India, Indonesia, Iran, Japan, Jordan, Kyrgyzstan, Malaysia, Pakistan, the Republic of Korea and Sri Lanka. Sri Lanka, to its credit, is only one of three in Asia to thus far have accompanied its candidature with a pledge to human rights. However, this pledge contains numerous points which speak to the state’s complete denial of its real human rights record, and as such is indicative of the lack of good faith that can be expected from the state if it were to be elected.
In its pledge document, available at http://www.un.org/ga/60/elect/hrc/srilanka.pdf, Sri Lanka claims to have “followed a consistent policy of cooperation and open and constructive engagement with all UN Human Rights Treaty Bodies…[and] with the special procedure mechanisms of the Commission on Human Rights.” The Asian Human Rights Commission’s (AHRC) experience of this is very different. During the consideration of Sri Lanka’s report by the UN Committee against Torture in November 2005, the AHRC witnessed first hand the Sri Lankan delegation’s refusal to admit the endemic nature of the use of torture in the country, attempting to minimize or obfuscate the gravity of the situation prevailing in the country. Furthermore, none of the recommendations made by the afore-mentioned Committee have been implemented to date and there is no evidence that there is any intention to do so. This is also the case with numerous recommendations made by other UN human rights bodies and mechanisms.
The pledge document includes the claim that: “In pursuit of its commitment to the further promotion and protection of human rights, Sri Lanka will soon be undertaking the following activities: take appropriate implementational measures in respect of relevant recommendations made by the Human Rights Treaty Bodies¡Kin the past¡K”. This begs the following questions: why has such implementation not already been performed, if Sri Lanka claims to have a record of respect for human rights? Is this pledge just another example of the double-speak that so damaged the Commission on Human Rights? Membership on the Council is meant to be for states that have shown a commitment to human rights, not to those who promise to “soon” start exhibiting such behavior. The world’s most grave human rights violators have learned to use diplomatic and human rights language to cover their tracks. This has been pointed out as being behind the previous Commission’s major failings. In identifying these issues, surely the international community has matured enough not to be further duped by such tactics. The Council must have members with demonstrable and currently acceptable human rights records if it is not going to immediately lose credibility.
The Asian Human Rights Commission wishes to draw the attention of all concerned persons regarding the negative impact that Sri Lanka’s membership could have on the Human Rights Council, as well as on the possibility of taking effective measures to negate the seriously defective human rights system in Sri Lanka.
The following issues demonstrate Sri Lanka’s extremely bleak human rights record:
1. Sri Lanka as a state party to the Optional Protocol to the ICCPR has openly declared that the ICCPR is not binding on Sri Lankan courts and that any decisions made by the Human Rights Committee regarding violations of rights by Sri Lankan courts cannot be and will not be implemented by the Sri Lankan government. We refer to Communication Nos. 1189/2003 and 1033/2001. In communication 1189/2003, the Human Rights Committee, expressing its views on 31st March 2005, held that the state party has violated Article 2 (3)(a) of the ICCPR and that the state party should pay compensation and make legislative changes as necessary to avoid similar violations in the future. However, the state party replied that:
“The government of Sri Lanka is unable to consider the payment of compensation to any person on the basis of a conviction and sentence passed by a competent court in Sri Lanka. In the present case, the author was convicted by the Supreme Court, which is the apex court in Sri Lanka and sentenced by the said court. As such, payment of compensation on the basis of the conviction and sentence tantamount to an undermining of the authority of such court and would be construed as an interference with the independence of the judiciary.”
In the matter of Communication No. 1033/2001, the Human Rights Committee held that the author’s rights under article 14 paragraph 1, 2, 3, C and 14 paragraph G read with Article 2 paragraph 3 and 7 of the ICCPR had been violated by the state party and expressed the view that the state party should either release the author from prison or grant a retrial. In reply to the Human Rights Committee the state party stated that:
“the State party does not have the legal authority to execute decisions of the Human Rights Committee to release the convict or grant a retrial”.
2. Sri Lanka has failed to implement any of the recommendations made by the Human Rights Committee after the Periodic Review in November 2003 (CCPR/CO/79/LKA).
3. Sri Lanka has failed to implement any of the decisions made by the Committee against Torture after the Periodic Review made in November 2005 (CAT/C/LKA/CO/2).
4. Sri Lanka has had massive disappearances in the South of the country as well as in the North and no one has been prosecuted. Sri Lanka has refused to implement most of the recommendations of the Working Group on Disappearances (E/CN.4/2000/64/Add.1). Sri Lanka has refused to prosecute any higher ranking officers regarding violations of human rights such as torture an extra-judicial killings. The principle of command responsibility is therefore being denied by Sri Lanka.
5. All the commissions that have been created for the purpose of improving monitoring of human rights have been made defunct by the failure to appoint their commissioners, including the Human Rights Commission of Sri Lanka. Independent appointments were guaranteed under the 17th amendment to the Constitution, which prescribed that the selection of the commissioners was to be performed by an independent body called the Constitutional Council (CC). Since March 2005, when the terms of office of preceding members of the CC expired, no new members have been appointed. As a result, there is an impediment to the appointment of members to the Human Rights Commission and other commissions, brought about by the non-respect of the Constitution. The President of Sri Lanka has, meanwhile, begun to appoint commissioners directly without a proper selection process. As a result, the independence of the commissions has been completely lost. The basic protections afforded by independent commissions and the special role which was to be played by the Human Rights Commission of Sri Lanka have come to an end.
6. The Sri Lankan policing system has been admitted to be corrupt by the Inspector General of Police and others but no action is being taken to correct this situation. The Sri Lankan policing system has also been found to be without discipline by some higher ranking officers and in pronouncements made by courts. However, no action is being taken to correct this; torture is found to be an endemic practice by the police as declared by the Human Rights Commission of Sri Lanka and others, but again, no action has been taken to correct this. There are many decisions by the Supreme Court against Sri Lankan police officers, including the Inspector General of Police himself, but despite such decisions these officers continue to work at the police stations. The failure of police officers to attend courts has been identified as one of the key reasons for delays in adjudication in Sri Lanka.
7. Sri Lankan courts have been found to be inefficient due to prolonged delays, which on average last over five years according to a conservative estimate made by the World Bank in an appraisal report in 2000. Nothing significant has been done to correct this. There are increasingly frequent accusations of corruption against judicial officers and condemnation of the breakdown of the disciplinary process that is exercised through the Judicial Service Commission (JSC). Two of the three senior judicial officers who were members of the JSC resigned citing matters of conscience, but in spite of significant protests and requests for inquiries, the government has not inquired into the grievances of these two senior-most judges of the country’s apex court.
8. Sri Lanka does not have a witness protection programme and, as a result, persons complaining of human rights violations are exposed to enormous dangers including assassination. Gerald Perera, a torture victim pursuing a complaint before a High Court, was assassinated a week before he was to give evidence against several police officers. Many others have complained of serious attacks and threats due to the making of complaints.
9. Sri Lanka has failed to take effective action to stop rape. Trials relating to rape cases are dragged on for several years, during which time the victims are exposed to serious threats and other forms of pressure. After many years, such victims give up their cases, encouraging the continuing proliferation of such abuses.
10. Corruption is rapidly increasing in the country and the Auditor General, who has tried to examine some notable cases of corruption, has faced harsh criticism. Auditor General Department staff-members also fear visiting offices to conduct their audits. Important cases of fraud in the Inland Revenue Department have been reported and are under investigation. There have also been allegations of corruption in the Department of the Public Trustee. Lawlessness is spreading throughout the country and, due to the failure of law enforcement agencies, people do not get the protection they deserve and are entitled to under the ICCPR.
The Asian Human Rights Commission therefore urges all concerned parties, notably the United Nations General Assembly’s member-states, not to accept Sri Lanka’s membership within the Human Rights Council. While no state has a perfect human rights record, it is vital that, within the range of available options, only those states that have shown tangible commitments to human rights and are not engaged in massive, widespread or endemic violations be considered for membership. Sri Lanka is no such state. While finding 13 such states may be particularly difficult in Asia, it is vital that the human rights records of each candidate be weighed against the others in order to ensure that, as a minimum, the worst violators be excluded.
The AHRC sincerely hopes that the Human Rights Council will be a success and that it will augur in a new era of respect for and protection of human rights. The Council faces many obstacles before this becomes a reality, with the election of credible members being the next such test it must survive.