SRI LANKA: Why a Presidential Commission cannot ensure protection of human rights and why foreign observers cannot play a positive role in such a commission? The case for an international monitoring mission

The Asian Human Rights Commission is concerned about the negative response of the Sri Lankan government to international requests for the establishment of an independent international human rights monitoring mission in Sri Lanka and are dismayed that what is offered instead is a local Presidential Commission with the possibility of some international observers being allowed to watch the proceedings of the Commission.

The AHRC categorically states that a Presidential Commission, by its very nature will be unable to carry out the mission of the monitoring of human rights and international human rights law abuses.  International observers attending any such commission will only be able to observe a spectacle of delay, inefficiency and gross incapacity to deal with any of the major problems in the area of human rights and humanitarian law abuses.  Given the large scale abductions, disappearances, extrajudicial killings, massacres and violations of humanitarian law with no redress available in the country such a commission cannot be but a cynical mockery of international norms and standards and the principles of justice.

The government suggestion of a Presidential Commission with possible access for international experts is not in any way an adequate response to the present situation.  In fact, from past experience such commissions have proved complete failures.  What is required in the present situation of the human rights crises are credible investigations and not just fact finding missions, which is what the Presidential Commissions in fact are.  The refusal of permission to the ICJ to attend, even as observers, the case of the killing of 17 Action Internationale Contre la Faim (ACF) aid workers in Muttur in August clearly demonstrates that any international observers before Presidential Commissions have no real hope of participating in the investigations into gross human rights abuses.  The Presidential Commission’s mandates can only be for violations that have already taken place and limited only to a fact finding role.

The Inspector General of Police, Chandra Fernando, has gone on record as saying that since the victims are unable to give details of the violations they have suffered and the identities of the perpetrators, the police are unable to inquire into these matters.  By numerous statements and publications the AHRC has demonstrated in the recent years that there is a complete paralysis of criminal justice investigations in the country (see an X Ray of the Sri Lankan Policing System, 321 pgs published by the AHRC in September 2005).  A Presidential Commission can make no difference to this institutional failure on the part of the country’s premier investigation agency.

Further a Presidential Commission of Inquiry will work on the basis of the local law, which includes emergency regulations and other restrictions on freedoms enforced by law or presidential decrees.  This means that the basis of a mandate of a Presidential Commission will not be the international norms and standards of human rights or international humanitarian law.  Within such restricted parameters even a very daring Presidential Commission can do little.

A very specific difficulty for a Presidential Commission or any local commission will arise from the recent judgment of the Supreme Court in the case of Singarasa vs The Attorney General (SC (Spl) L.A. No. 182/99); in this case the highest court in the land held that the International Covenant on Civil and Political Right has no internal effect in the country and that the president’s signature to the Optional Protocol in 1997 was ultra vires to the Constitution.  This will equally apply to all the covenants and conventions that Sri Lanka has signed so far.  This means that a local commission will not be able to apply international norms and standards in their inquiries, even if should they wish to do so.

Another peculiar problem to the Presidential Commission or any other inquiring body is the absolute impossibility of inquiring into violations of human rights done by the armed forces.  In the recent decades many inquiries have started into what may be termed gross human rights abuses such as the killing of 40 odd school children in what was known as the Embilipitiya massacre done by the military inside a camp.  There is also the massacre of detainees at the Bindunuwewa camp and many other massacres of similar type which even with heavy public pressure, with police and judicial inquiries, no one succeeded in prosecuting the perpetrators.  Over 30,000 disappearances which took place between 1987 and the ’91 period mostly in the South have not led to any criminal investigations or prosecutions.  The Presidential Commissions which inquired into these matters collected the initial factual information and called for inquiries under the criminal investigation procedures in Sri Lanka but nothing really happened.

The most basic problem in this regard is the fact that in Sri Lanka inquiries into massacres and other violations of the military are impossible whether such abuses happen in the South, North or the East.

This same principle also applies to gross abuses of human rights by the LTTE or other militant groups which also operate in causing gross human rights abuses.  No Presidential Commission or local authority will have the capacity or the willingness to investigate these abuses.  Instead abuses by the LTTE will be used as an excuse for military abuses and vice versa.  This situation of deadlock on the issue of human rights violations between the parties to the conflict cannot be broken except by a credible and full fledged international human rights monitoring mission with a mandate derived from the United Nations.

A further reason why local institutions such as Presidential Commissions fail is that such commissions can be appointed and dissolved as a regime wishes.  The situation of the 17th Amendment institutions such as the Constitutional Council, the National Police Commission, the Public Service Commission and the Election Commission shows that even Constitutional bodies can be abolished without any recourse to legal process.  The fate of the Human Rights Commission of Sri Lanka clearly demonstrates the pathetic position of local bodies that can be squeezed into nothingness as the executive wishes.

Under these circumstances the promise of a Presidential Commission, even if realised, cannot make any significant difference to the present situation.  A local saying might sum up the fate of the foreign observers.  This is: ‘as how the Parangi (Portuguese) went to Kotte.’  This is based on a legend from the 16th century at the time of the Portuguese occupation of some coastal areas of Sri Lanka.  The Portuguese chief wanted to meet the Sinhala king for a trade discussion.  He was allowed to do so on the condition that he would be blind folded before being taken to the king.  It took a long time before the Portuguese envoy reached the king.  In fact, the distance between the king and the envoy was actually quite short.  However, the envoy was taken around for a long time to create the impression of a long distance so that he would not think it an easy task to reach the king for military or any other purpose.  This story is repeated in the country to show the ways of misleading the foreigners.  Unfortunately the human rights diplomacy of international agencies and foreign embassies in Sri Lanka shows how easy it is to cover up the actual situation of the massive abuses of human rights and to get away with all sorts of promises.  The glaring example is the 30,000 disappearances which ended without any credible inquiry or prosecution.  All this explains the fate of any foreign observers who, out of naivety may wish to become an observer to such Presidential Commissions.

The example of Nepal provides that, despite of the militant positions of the parties to the conflict, a strong human rights monitoring mission can bring about a change and create space for everyone to participate in the restoration of the rule of law and democratic discourse to deal with local issues.  Though there may be initial resistance to such a move the benefits when they are demonstrated may convince the Sri Lankan population that there can still be light at the end of the tunnel.

For the United Nations and the international human rights community it would be a great loss if such a human rights monitoring mission is not established NOW.  It is hoped that the present catastrophic situation will have to present more deaths and greater displacements before such a decisive move is made to establish such a mission.

Document Type : Statement
Document ID : AS-233-2006
Countries : Sri Lanka,
Issues : International human rights mechanisms, Judicial system, Rule of law,