Human Rights: Public Relations and Private Agendas - 8th January 2008

'''In recent months there has been much criticism of the national Human Rights Commission of Sri Lanka. This criticism has been a focal point of the determination of interested parties to establish a field office in Sri Lanka of the United Nations High Commissioner for Human Rights, answerable as she unequivocally put it, ‘to me’. Accompanying such claims are the myths that the deficiencies of the current HRC are entirely the fault of the current government, and that the government is unwilling to admit that there are problems.'''

Such myths need to be exploded. The Sri Lankan Ministry for Disaster Management and Human Rights has made it clear that assistance in strengthening national Human Rights mechanisms is eminently desirable, and has suggested areas in which technical assistance might be forthcoming. In addition the HRC itself has asked for assistance, but this has been rejected. According to the former Senior Human Rights Adviser appointed by the UN High Commissioner, this is because there is a lack of confidence in the HRC. This lack of confidence is based on the fact that it was appointed in violation of the constitutional requirement concerning the appointment.

The Peace Secretariat has previously pointed out that this is a simplification of the legal position. The Constitutional Council established by the 17th amendment to the Constitution has not been fully constituted and, according to a ruling by the Supreme Court and the advice of the Attorney General, such a body cannot function until all its members are in place. Contrary to the suppositions of international critics, it is the Speaker who selects members of the Council, and the President cannot appoint until that process has been accomplished. However, none of those who complain about the lacuna have as yet had recourse to the law to expedite the Speaker’s selection.

Since the Constitutional Council cannot then function, the President could have refrained from making appointments to bodies which require a recommendation of the Council for appointment. Such failure to appoint could however have led to chaos in many cases. Accordingly, in response to what is obviously a flaw in the act, the President made the appointments himself, in the way in which such appointments had been made by previous Presidents on their own before the 17th amendment was passed. Meanwhile a Parliamentary Select Committee has made recommendations to render the 17th amendment more practicable, so that the situation that has arisen because of the Speaker’s inability to make a selection will be avoided henceforth.

So much for what remains the main reason for criticism of the HRC. Another is that it has failed to produce reports on time. Yet what is remarkable about this is that the failure in this regard began with the previous Commission in this regard. Yet that Commission, the Chairperson of which is obviously exempt now, as an employee of the UN herself, from UN criticism, had in fact an appalling record as to its administrative competence – diagnosed by a stocktaking report prepared by the UNDP itself.

That report had not however even been shared with the current head of UN operations in Sri Lanka at the time at which he arranged for the visit of the UN High Commissioner for Human Rights as invited by the Sri Lankan government. This is perhaps unsurprising, given that the agenda of some of those concerned with the visit was to denigrate the current Commission as much as possible. But the strong critique that the UN stock taking report made of the chaos that prevailed under the previous Commission (whilst also recognizing some of its distinct strengths) should be registered, so that the difficulties encountered by the current Commission are seen in context.

With regard to reports by the HRC, the UN report says ‘The 2003-2006 Commission produced one annual report, for the year ending 31 December 2003, but the reports for the years 2004 and 2005 have not progressed beyond the draft stage. Reportedly, the combined report awaits sign-off by the previous Chairperson. However, the draft viewed by the writer contained typographical errors and a large chunk of duplicated text.’

With regard to the backlog, the UN report says, ‘The backlog has been disposed of, largely as a result of one of the new Commissioners handling the referrals himself’, which suggests that, at least until the international community decided to withdraw resources from the HRC, the new Commission seemed more efficient than its predecessor.

In other areas the report is wryly critical of the chaos that seems to have reigned – ‘No Monitoring Manual can be located …. All the problems identified in the 2003 Assessment remain, despite backlog projects and much staff (permanent and temporary) time and effort …. No reports on the Gampaha exercise could be located….Reports could not be located for these two activities, although a Special Rapporteur was appointed on housing in the plantation centre but apparently did not respond to the Commission further … A resource kit has been produced on contract, printed and distributed, but it has not been possible to sight the resource to determine whether it meets the aim of the activity…It was difficult to find information required for this stocktaking exercise, both because a central filing system has been instituted only very recently, and because of weak or non-existent reporting mechanisms…In many ways, the lack of progress on management and administrative reforms represents an opportunity lost by the previous Commissioners’.

Finally, given the howls of glee with which the UN High Commissioner for Human Rights and her cohorts jumped on the national HRC, it is worth noting that the UNDP report says, ‘While all of the Commission’s stakeholders would prefer (some strongly so) that the appointments had been made in accordance with the Constitution, no-one was able to identify any instances where the failure to do so had demonstrably affected Commissioner’s performance of their responsibilities. Some commentators did observe that the current Commission exhibited a much lower profile than its predecessor. That in itself might indicate a reluctance to challenge the Executive. There is another, perhaps more likely, explanation for this, however. The Commission comprises three retired judges and two lawyers. The judicial tradition is to “listen, not talk”, lest the judge compromise the need to appear non-partisan and free from bias.’

But, sadly, in the modern world, public relations seems more important than performance. And of course performance too suffers when resources are limited. The present Commission has pointed out areas in which assistance that was pledged was not provided. The UN SHRA’s explanation was that donors would not provide funds because they had no confidence in the Commission. And thus the prophecy became self-fulfilling, allowing for ever harsher criticism, which lowered confidence, which blocked resources, which limited performance, which allowed for even harsher criticism and so on.

Objectively, given the general flaws the UN identified before it was decided to turn this particular HRC into a causus belli, a pretext for assault, what would have been desirable was concerted assistance to develop it as an institution. This could perhaps have been requested in accordance with national needs and priorities by the Government of Sri Lanka, along with assistance to develop for instance the capacities and sensitivities of the police in this field. But the very negative response the HRC seems to have received to its requests suggests why no progress has been made.

With new staff in the field however, and with greater determination on either side to achieve progress in the field of rights rather than fulfil other agendas, some development might be anticipated. The need then is for serious discussion in terms of sustainable results, so that the people of the country can benefit, not those whose careers lie in this field, some of whom had been asked – though not by her, one assumes - to pack their bags to come to Sri Lanka even before the High Commissioner made her exploratory visit.

Prof Rajiva Wijesinha

Secretary General

Secretariat for Coordinating the Peace Process