Pressure mounts on govt. to meet UNHRC commitments



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After the talks on VAT with the representatives of regional chambers of commerce broke down earlier this week, anti-VAT hartals broke out in the Ratnapura and Hambantota and it appears as if things will build up into a countrywide showdown if the government does not take a step backwards. In places like Ja-ela and Ampara town, the governing parties had tried to use their influence (and muscle) to blunt the campaign by persuading some shopkeepers to keep their establishments open. Such instances were however few and far between. Last week Deputy Minister Ajith P. Perera was desperately trying to justify the VAT with the argument that it was necessary to collect increased taxes to provide better services for the people. Perhaps the point that the government seems to have missed is that it would have been impossible to motivate whole towns to put up their shutters if the VAT was not hitting the retailers really badly.


Another bombshell due this week is the impending increase in bus fares. This too is related to the government’s tax policy because the private bus owners started demanding an increase in bus fares following the changes to the government’s tax policy for vehicle imports. The likelihood is that the government will increase the fares. The choice is between surrendering after the private bus owners go on strike or surrendering before they go on strike. The government is likely to choose the latter option this week which will of course mean that the people will have to bear the brunt of the bus fare hike.


In the middle of all this, the prime minister made an intervention in parliament last Thursday which has given rise to much speculation. This was the request made by him to Speaker Karu Jayasuriya to overrule the Supreme Court determination given in Nallaratnam Singarasa v Attorney General in 2006 which stated that Sri Lanka's accession to Optional Protocol I of the International Covenant on Civil and Political Rights (ICCPR) needed a two- thirds majority of Parliament and approval by people at a referendum in order to become law. The prime minister had referred to it as ‘a perverted interpretation of the Constitution’.


 


PM’s suprise move to circumvent SC


According to our constitution, only the Supreme Court can give interpretations of the constitution and once they do that, it is binding even on parliament. This government has set interesting precedents in getting rid of high officers of the state like chief justices and this call on the Speaker to overrule a Supreme Court decision may set another interesting precedent. The fact that this particular case should come up at this moment is also interesting in view of the processes taking place in Geneva. The Nallaratnam Singarasa case was a landmark judgment on judicial power. The question then was whether the Sri Lankan courts were bound by a decision handed down by a foreign tribunal. Today we are once again talking about international laws and foreign judges to preside over war crimes trials in Sri Lanka.


Nallaratnam Singarasa vs. The Attorney General was a fundamental rights case that came before the Supreme Court in 2006. It was heard before a five judge bench comprising of Chief Justice Sarath N Silva, and Justices Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Gamini Amaratuga. The petitioner Singarasa had been convicted by the High Court on terrorism related charges and was serving multiple prison sentences which were to run consecutively. Singarasa applied to the Human Rights Committee in Geneva (Not to be confused with the Human Rights Council which is also based in Geneva. The latter is a body made up of representatives of member states whereas the Human Rights Committee is a quasi judicial body set up under the provisions of the International Covenant on Civil and Political Rights).


Sri Lanka had acceded to the ICCPR in 1980 and Optional Protocol I of the ICCPR was signed in 1997 during the Chandrika Kumaratunga government. The latter enables Sri Lankan citizens to address appeals to the Human Rights Committee in Geneva and Singarasa made such an application. The Human Rights Committee held that the conviction and sentence imposed on Singarasa had violated the provisions of the ICCPR and that the petitioner should be provided with appropriate remedies including release or retrial and compensation as well. Armed with this decision, Singarasa petitioned the Supreme Court seeking relief. The SC observed that judicial power forms part of the Sovereignty of the people and could be exercised ONLY by courts recognized by the Sri Lankan constitution and that the petitioner cannot seek to ‘vindicate and enforce’ his rights through the Human Rights Committee at Geneva, which is not reposed with judicial power under our Constitution.


The SC pointed out that even though the ICCPR and the optional protocol thereof had been signed by the executive arm of the state, the provisions of Optional Protocol I had not been incorporated into law by parliament and that since the judicial power of the state is involved, it impinges on one of the entrenched provisions of the constitution and needs a two thirds majority in parliament as well as a referendum to be passed into law. Why the PM wants the Speaker to seek ways and means of overthrowing this particular Supreme Court decision at this juncture is an interesting question. It is the SC that decides whether any amendment to the constitution needs a referendum in addition to a two thirds majority in parliament. If the Speaker can overthrow an SC interpretation of the constitution, then that leaves the field open for parliament to do absolutely anything.


The fact that this suggestion by the PM comes in the wake of a visit by a British political strategist who had conducted a workshop for UNP parliamentarians last week, makes the suggestion all the more intriguing. What are the circumstances in which parliament acting as the supreme legislative body has the power to override the executive as well as the judiciary? We all know that as far as the British parliamentary tradition is concerned, when push comes to shove, parliament takes precedence over everyone and everything else. Our own Parliamentary Powers and Privilges Act says very clearly that with regard to areas not provided for in that Act, the traditions, practices and precedents of the British parliament will apply. We wait with bated breath to see how things pan out.


 


OHCHR demands their


pound of flesh


Just as things were unraveling on the economic front, matters are coming to a head on the political front as well. On Wednesday Foreign Minister Mangala Samaraweera characterized the statements president Maithripala Sirisena made some months ago about not having foreign judges, prosecutors or investigators in any war crimes investigation in Sri Lanka as the ‘personal opinion’ of the president and that the president and PM have yet to decide on a suitable course of action. Obviously in reply to his foreign minister, President Sirisena pledged before a gathering of Buddhist monks on Friday that he would not under any circumstances allow any foreign judges, prosecutors or investigators to serve in any mechanism set up to try military personnel.


That this public divergence of opinions or statements comes so soon after the bruising battle over the appointment of the Central Bank Governor shows how dysfunctional the dual control government is becoming. The fact however is that the position taken by the government in Geneva is not the position taken by the president in Sri Lanka. In Geneva, the government led by President Sirisena has pledged to allow foreign judges, prosecutors and investigators to serve on the war crimes tribunal that is to be established. But in Sri Lanka he is openly pledging to disallow what his government has undertaken to do in Geneva! As far as the UN Human Rights Council is concerned, what matters to them is the undertaking given in Geneva not the president’s rhetoric in Sri Lanka.


Speaking to this newspaper on behalf of the Joint Opposition, former Foreign Minister G.L.Peiris said that there were calls from various quarters including the TNA for the government to make good on the pledges given in Geneva in September last year. That too adds to the explosive mix of issues fermenting at the ground level. The oral update given to the 32nd Session of the UNHRC by Human Rights Commissioner Zeid Al Hussein on June 28 stressed that the UNHRC resolution that was co-sponsored by Sri Lanka last September represented "...an historic commitment by the Government of Sri Lanka not only to the international community, but also most importantly to the Sri Lankan people...". Hussein has approvingly said that President Sirisena had ‘eloquently’ argued in his Independence Day speech this year implementing the UNHRC resolution will lead to the achievement of freedom, democracy and reconciliation.


The Human Rights Commissioner has highlighted this single pronouncement by the president ignoring all statements to the contrary made by Sirisena in the past few months. The expectation in the Office of the High Commissioner on Human Rights (OHCHR) appears to be that Sirisena will fall in line ultimately despite his rhetoric. Elsewhere in the oral update the HR Commissioner states with some anxiety that the prime minister in addressing group of senior military officers had ruled out international participation in a domestic Sri Lankan justice mechanism. The Human Rights Commissioner stressed that international participation is a necessary guarantee for the independence of the process in the eyes of victims. Zeid Al Hussein seems to be more worried about what the PM says rather than what the president says. It appears that Mangala Samaraweera is not alone in thinking that what the president says is only an ‘opinion’ while what the PM says is ‘policy’. It may also be the case that the HR Commissioner sees the president as the weak link in the chain and prefers to work with the PM who appears to have a stand more to his liking.


High Commissioner Hussein had concerns about the false starts and doubling back on many matters by the government and observed that "... the full promise of governance reform, transitional justice and economic revival has yet to be delivered and risks stalling or dissipating." He spoke effusively about the decision to sing the national anthem in both Sinhala and Tamil on Independence Day in February 2016 stating that it was ‘a powerful gesture’, followed the next day by the ‘reciprocal visit’ of the Tamil chief minister of the Northern Province to a Buddhist temple in Jaffna. He also said that on May 19, 2016, the previous military celebrations of the 2009 victory were replaced by a more understated Remembrance Day and stated that ‘bold and visible steps of this kind’ can have a far-reaching effect in creating a climate of confidence and trust.


The HR Commissioner has spoken in despairing terms of delays in the release of land in the North and East stating that though the process was supposed to be completed by June ‘little progress’ has been reported and civilian leaders and officials seem to be ‘struggling to secure cooperation from the military’ and that reports continue of military engagement in commercial activities, including farming and tourism. The detainees held under the PTA were also mentioned by the HR Commissioner who stated that in December 2015, the government released on bail 39 individuals detained without charge, but around 250 detainees are believed to remain in detention. The HR Commissioner observed that the government had filed indictments in 117 of these cases, but lamented that there have been no further charges or releases this year. He said that this situation is ‘traumatic for the individuals concerned’ and urged the government to quickly find a formula to charge or release the remaining security-related detainees.


Zeid Al Hussein also deplored the Government’s continued reliance on the PTA to make new arrests, despite its commitment to repeal the law and noted that the government has made more than 40 new PTA arrests in 2015-16, including more than 25 in March-April 2016 during a security operation after the discovery of an explosives cache in Jaffna. The manner in which some of these arrests reportedly took place, said the HR Commisioner, have led some to compare them to the infamous "white van" abductions/disappearances of the past. He hastened to add that all those arrested reappeared in detention in matter of hours but that such cases strike fear in the community and undermine confidence in the government’s efforts to restore the rule of law.


The oral update also observed that the military presence in the north and east remains heavy and a culture of surveillance and, in certain instances, intimidation and harassment persists. Former detainees released after rehabilitation and civil society groups working with victims continue to face regular security checks and questioning about their work. One matter highlighted by the Professor G.L.Peiris speaking on behalf of the Joint Opposition is the UN Human Rights Commissioner’s call to ‘achieve successful prosecutions’ in the ‘emblematic human rights cases’ pending before the courts so as to build public and international confidence in the government’s commitment to accountability. The HR Commissioner had complained that during its first months in office, there were a number of high profile breakthroughs and arrests made in a number of prominent cases, such as that of Prageeth Eknaligoda, Lasantha Wickrematunge and Tamil MPs Joseph Pararajasingham and Nadarajah Raviraj, and WasimThajudeen, but progress has since slowed.


The OHCHR has reminded the government that it agreed in last September’s resolution to implement the full range of judicial and non-judicial measures, which should include prosecution, truth-seeking, reparations, and institutional reforms and lamented that overall progress in establishment of the different transitional justice components has been hesitant and slow. The HR Commissioner had stated that in the light of recent reports on the use of cluster munitions towards the end of the conflict, an independent and impartial investigation should be carried out.


The Joint Opposition also expressed its concern about the renewed call by the HR Commissioner for security sector reform, including a vetting process to ensure that ‘no scope exists for retention or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations’. The Joint Opposition has taken note of the fact that the implementation of this demand had now been made a precondition for Sri Lanka’s participation in UN peacekeeping operations. The HR Commissoner had said in his oral update that the personnel Sri Lanka intends to deploy in peace keeping missions will have to go through a vetting procedure with an independent, civilian human rights component. The ‘civilian human rights component’ mentioned here refers to foreign funded NGOs.


 


OMP: Precursor of the war


crimes tribunal


 The government has not been dragging their feet as much as the UN Human Rights Commissioner complains of. The draft legislation which is now before parliament to set up the innocuously named Office on Missing Persons would give anyone the impression that it was just another government office like the Presidential Commission to Inquire into Complaints Regarding Missing Persons which was the precursor of this Office of Missing Persons (OMP). But the OMP is a quasi-judicial body just one step away from a fully fledged war crimes court. The stated purpose of the OMP is to provide for the searching and tracing of missing persons, to provide assistance to the relatives of missing persons and to set up a database for missing persons. The missing persons dealt with by this office had to be missing in connection with armed conflicts, political unrest and civil disturbances.


 The OMP will consist of seven persons appointed by the constitutional council who will have the power to enter into any kind of agreement with any foreign or domestic person or organization to obtain information, technical support and training etc. The OMP has moreover been given complete authority in clause 21 of the draft legislation to raise funds from national or international sources – once again a matter that was singled out for comment by Prof. GLP on behalf of the Joint Opposition last week. The OMP was to have the power to receive complaints relating to missing persons, irrespective of when such person may have become a missing person. However the OMP may grant priority to recent incidents or which have substantial evidence already available; or which the OMP deems to be of public importance.


 It can also receive statements, examine persons as witnesses, summon any person present or residing in Sri Lanka to be present before the OMP and to admit notwithstanding anything contained to the contrary in the Evidence Ordinance, any statement or material, whether written or oral, which might be inadmissible in civil or criminal proceedings. The draft legislation specifically states that the findings of the OMP shall not give rise to any criminal or civil liability. However this is little consolation to those under investigation by a body like the OMP because they can admit any kind of evidence in building up a story against a person which by the nature of the allegations leveled, may cause serious damage to the reputation and career and social standing of that person. By rendering the Evidence Ordinance inoperable in relation to the ‘investigations’ of the OMP, there is the danger that will become a mud slinging exercise by interested parties.


 The OMP can apply to the appropriate Magistrate’s Court for an order to carry out an excavation and/or exhumation of suspected grave sites. They can also request assistance necessary to achieve their mandate from any State, governmental, provincial, or local authority or agency, or any officer thereof – this obviously includes the police and the armed services as well. Any such authority, agency or officer to which a request for assistance is made will be bound to render such assistance. Prof. GLP also expressed concern that officers of the OMP, will have the power to enter without warrant and investigate, at any time, any place of detention, police station, prison or any other place (military installations included) in which any person is suspected to be detained.


 Where it appears to the OMP that a criminal offence has been committed, the OMP may report it to the relevant law enforcement or prosecuting authority. Since the Evidence Ordinance is not operational in relation to the OMP, the ‘cases’ it builds up may be based entirely on hearsay or rumours. Upon concluding investigations, the OMP can issue a Certificate of Absence or a Certificate of Death through the relevant authorities as the case may be. A person who fails to appear before the OMP or refuses to answer any question put to him by the OMP or fails to produce any document or other thing, which is in his possession or control; or resists or obstructs an officer of the OMP shall be guilty of an offence of contempt against the authority of the OMP, which can be reported to the Court of Appeal which will then proceed to deal with it as though it were an offence of contempt committed against the Court or Appeal. This then is a quasi judicial body that can arrive at ‘findings’ relating to serious crimes like abduction and murder without any of the routine safeguards available to suspects in ordinary courts.


 As the Joint Opposition pointed out last week, when the process is rigged in this manner, those who manage to avoid being prosecuted by courts can be dealt with administratively and removed from the armed forces in the second round because a ‘case’ would have been built up against him in the OMP without the safeguards of the Evidence Ordinance. The armed forces are now encircled in the same way the LTTE was by April 2009!


 


 
 
 
 
 
 
 
 
 
 
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