State responsibilities during natural disasters
 

by Sarath Malalasekera

In the worst calamity to befall Pakistan, what was hyped in the media, was the emotional and concurrent response of the people from all walks of life, from all areas of Pakistan, to the distress, the needy, the sick, the hungry and the shelterless; why? Nobody has tried to discern, but which may provide a crucial clue to the psyche of the poor, the common man.

One thing that few have noticed is that it is the common man of Pakistan who has affirmed the compact with Pakistan and shown the most articulate understanding of what it means to be fellow citizens under a common bond of sovereignty, said Judge of the Pakistan Supreme Court, Justice Nasir Aslam Zahid addressing the inaugural sessions of the Asia Pacific Colloquium on "Judicial and Jurist Perspectives on Human Rights in Post Disaster Situations" held at the Galle Face Hotel, Colombo recently.

The sessions were organised by the Legal Aid Commission of Sri Lanka and Human Rights Commission of Sri Lanka, sponsored by UNCHR Aus-Aids.

Even in their misery they continue to invoke through media, local and foreign channels, that their claim from their country is based solely on their being its citizens. It is this 'sovereignty' sparked by Locke, Paine and Montesquieu, to which the modern democracies today owe allegiance.

The sovereignty which man reclaims, either in human excesses, or in natural catastrophes, where or when the promisor fails to deliver, that man again recompacts his binds with his fellow men, to attain that, which was obligatory for the State, and the links becoming weaker, on every non-observance of a moral duty, the State remaining unsuccessful to that extent, the former Pakistani judge said.

Justice Zahid emphasised that human beings when internally displaced as a result of disaster have the right to enjoy human rights that are articulated by international human rights instruments and customary law. The Guiding Principles on Internal Displacement, created in 1998, collate and formulate existing international human rights and humanitarian law, both, which are germane to the rights of affected persons.

Recognising the vulnerabilities of persons internally displaced they resorted to a broad definition of internally displaced persons' as persons forced or obliged to flee or leave their homes or places of habitual residence' for reasons which include, besides conflict and civil strife, "natural disaster.' The principles thus provide a framework for conceptualizing the issue and dealing with the challenges of human rights in post disaster management, former Pakistani judge added.

Australian High Commissioner Dr. Gregory French, Sri Lankan Attorney General K.C. Kamlasabeyson PC, Justice Marcus Einfeld AO QC, retired Justice of the Supreme Court and Federal Courts of Australia, Justice D.P. Wadhwa, retired Justice of the Supreme Court of India, Sri Lanka Human Rights Commission Chairperson Dr. Radhika Coomaraswamy, Deshamanya H.L. de Silva PC, Dr. Deepika Udagama, Justice Nasir Aslam Zahid, retired Justice of the Supreme Court of Pakistan also addressed the Judicial Colloquium.

Concluding remarks were made by Legal Aid Commission Chairman S. S. Wijeratne. UNHCR Protection Officer Ms. Annika Sandlund, Justice Shiranee Thilakawardena, Justice of the Supreme Court of Sri Lanka, Director of Public Prosecutions New South Wales Australia and president of the International Association of prosecutors (IAP) Nick Cowdery AM QC, retired Justice Hector Yapa, Justice of the Supreme Court of Sri Lanka, retired Justice Marcus Einfeld AO QC, Justice of the Supreme Court and Federal Courts of Australia, Member of the Eminent persons group on Refugees and Migratory Movement of South Asia and Deshamanya R.K.W. Goonesekera also addressed the sessions.

Following are extracts of Justice Nasir Aslam Zahid's address:

As this paper was under preparation, Pakistan was hit by the worst ever natural calamity in its history. On 8 October 2005, Northern Pakistan and Azad Kashmir were devastated by an earthquake lasting almost 6 minutes with a 7.6 magnitude on the Richter scale. Since then the Northern Areas are being regularly hit by tremors.

Till 13 October, Neelum and Jhelum Valleys were still closed; both from the main arteries of Azad Kashmir. Even in Pakistan itself, the remote hilly areas were still not accessible. Hence, the statement issued by WHO on 13 October, that the current calamity was worse than tsunami which hit Indonesia in December 2004, came as no surprise to Pakistanis.

Official estimates still put the figures of persons who perished at 40,000 odd numbers, while independent sources as Abdul Sattar Edhi, estimate that the figure could cross 300,000. We are still unaware of the number of that vast stretch of remote villages which, till 8 October, sprinkled life in the mass of Pamir Knot, the joint of Hindukush, Himalayas, and Karakorum mountain ranges, and equally so in Azad Kashmir.

The last census, took place some 30 odd years ago; there is no effectual survey available, by which any credible figure of population of the distraught areas is available today. If it is with the Government of Pakistan, the public at large, including the civil society, has no access to it. Therefore, the diversity in these figures should not surprise us.

A contract of citizenship defines the duties of care that public officials owe to the people of a democratic society. The Constitution of Pakistan, 1973, comprehensive instrument, lays down in most specific terms what the citizens expect from their government.

These expectations structure the Principles of Policy, spelt out in Chapter 2 of part II of the Constitution. While, Article 9 in Chapter 1, determines the fundamental consideration in protection: not only in protecting the citizens life and liberty, from any arbitrary, biased or capricious action of the executive, and the public functionaries, but by the same token, helping them to protect themselves from forces beyond their control, as natural catastrophes.

Ironically, the present constitutional scheme was put in place, immediately following a human disaster, the break up of Pakistan, preceded by the Indo-Pak War of 1971. The causes, the reasons leading to the creation of Bangladesh were very clear to the authors of the present constitution. The Preamble testifies to this:

"Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice.

"Wherein adequate provision shall be made to safeguard the legitimate interests of the minorities backward and depressed classes".

One of the most common consequences of natural disasters is internal displacement of the affected population. An important issue in post disaster management is thus the provision and ensuring the rights guaranteed under the international covenants.

Once persons have been displaced, they retain a broad range of economic, social, cultural, civil and political rights, including the right to basic humanitarian assistance (such as food, medicine, shelter,), the right to be protected from physical violence, the right to education, freedom of movement and residence, political rights such as the right to participate in public affairs and the right to participate in economic activities (Principles 10 - 23).

Displaced persons also have the right to assistance from competent authorities in voluntary, dignified and safe return, resettlement or local integration, including help in recovering lost property and possessions. When restitution is not possible, the Guiding Principles call for compensation or just reparation (Principles 28-30).

As a crucial element of sovereignty, it is the governments of the states where disaster struck persons are found that have the primary responsibility for their assistance and protection. The international community's role is complementary.

At the international level, no single agency or organization has been designated as the global lead on protection and assistance of such persons. Rather, all are called upon to cooperate with each other to help address these needs pursuant to the "collaborative approach".

The most disaster-affected countries move from relief to reconstruction, the greater the need to address human rights problems. Documented natural disasters experience has shown that there is a serious risk to human rights when the disaster-affected are unable to return to their homes or unable to locate new homes soon after the disaster. The longer their state of residence remains transient more likely are their rights to remain inchoate and uncertain and, by same degree, their economic, social and cultural rights threatened.

Generally perceived human rights concerns that are germane to post disaster management can be broadly grouped as access to assistance, access to education, property issues, voluntary return and resettlement, non-discrimination, protection of vulnerable sections and trafficking of humans.

In the context of natural disaster, persons displaced and affected are obviously entitled to seek the help from their governments. The provision of relief to the victims of natural disasters is an essential role of government in a democratic state, and government would have failed in its duty to the victims of natural disasters, if it has done nothing.

The compact between people and the State inures to them the protection from nature's depredation and catastrophes which are acts of god or 'force majeure'. This is the de minimis consideration of the social contract.

Often the governments when they themselves are not in a position to provide adequate assistance must not block access to those in need. The case of Indonesia, in blocking US aid in Tsunami and initial reluctance by Pakistan government in accepting Indian aid for victims of earth-quake is a case in point.

Bureaucratic restrictions on the delivery of aid, such as excessive delays to issue the necessary permits to reach affected populations, allocation of quotas and playing favourites by the local administration should be discouraged.

Discrimination and inequities may arise in the distribution of humanitarian aid and in decisions regarding reintegration and resettlement assistance must be provide in accordance with the long-established principles of impartiality and neutrality, without discrimination on the basis of race, ethnicity, religion or caste or privileging to those uprooted by a natural disaster.

Return and resettlement raises the issue of State assistance in building the lives of the displace persons. While the State owes this to these persons to help them build their dwellings, its infrastructure, it also needs to rehabilitate their means of livelihood in accordance with the Guideline Principles by establishing the conditions, as well as providing the means, to return voluntarily, in safety and dignity, to their places of origin.

Access to education not only protects the children's future as useful citizenry but also keep them out of trafficking, abuse, beggary and as a base for recruitment for violent groups.

Equally, the safety of children and women as a specially threatened section of disaster affected populace raises important issues of sexual and gender-based violence, especially in camps, where they risk higher levels of domestic violence, indignities and abuse. Women have to be encouraged to participate in the camp management, food distribution chains and directly involved in eliminating gaps in distribution of essentials of life. Special care for ensuring reproductive health and maternity facilities is required.

An important arm of post disaster management concerns the proper institutional controls in handling the international humanitarian assistance. This has two parts. Since the initial response to natural calamities evoke over commitment actuated in part by reason of publicity, the actual delivery far lags behind as the amnesia takes over or other disasters supersede.

Second issue concerns the transparency in delivery, distribution and spread of the assistance rationally, non-discriminatorily, regardless of race, religion, caste, creed and ethnicity. Since the source of aid is located far from the disbursement and instrumentalities are often physically disparate, the resources often are wasted and siphoned away-by recipient governments and organizations. A leak proof accounting and auditing system would be highly desirable if the resource utilization is to be optimized in the interest of persons affected by the disasters.

Today, we have before us parallels in Hurricane Katrina in southern U.S., and the earthquake in Pakistan, both separated only by few weeks. Both, natural disasters. Both, revealing stark similarities, in the State responses.

Hurricane Katrina's assault on New Orleans' most vulnerable residents and neighbourhoods has reinvigorated a dialogue on race and class in America.

New Orleans ranked second among the nation's 50 largest cities on the degree to which its poor families, mostly African American, were clustered in extremely poor neighbourhoods like the Lower Ninth Ward.

In these places, the average household earned barely more than $20,000 annually, only one in twelve adults held a college degree, four in five children were raised in single parent families, and four in ten working-age adults-many of them disabled were not connected to the labour force.

Despite improvements in the 1990s, nearly every major American city still contains a collection of extremely poor, racially segregated neighbourhoods. In cities as diverse as Cleveland, New York, Atlanta, and Los Angeles, more than 30 percent of poor blacks lives in areas of severe social and economic distress.

They emerged in part due to decades of policies that confined poor households, especially poor black ones, to these economically isolated areas. The federal government concentrated public housing in segregated inner-city neighbourhoods, subsidized metropolitan sprawl, and failed to create affordable housing for low-income families and minorities in rapidly.

Right to infirmation is a fundamental right and follows from the fundamental right of expression. In this hour of the worst natural disaster in this area for over a hundred year, it is imperative that the people of Pakistan be taken into confidence about the extent of the tragedy and the exact areas and the numbers of casualties and affected persons.

It is a kind of tragedy where tens of thousands of people have lost their lives and people are still dying and nearly 5 million people have become homeless or affected. In this rare situation every citizen has a right to be made aware everyday about the relief efforts being undertaken and the successes and failures of these efforts.

The nation and specially the affected have the right to know whether the Government was prepared to control the damage in such an eventuality. Had the Government in readiness a Disaster Control Plan and it so whether it was put into operation and with what success or failure? What action has been taken and proposed to be taken by the Government to control the damage and losses in a future calamity of such a kind?

What actions are being taken for construction of earthquake proof buildings and structures in future and what is the proposed action plan for existing buildings? Why is it that in the worst affected towns and villages, almost all government buildings, hospitals and schools caved in and whether any inquiry is being conducted and whether it is proposed that criminal and or civil action will be taken against the persons responsible for construction of such buildings in case these were sub-standard structures?

The other problem, and a very serious one, is about the immediate temporary settlement of the affected people and then of course about their permanent resettlement. What are the plans of the Government in this regard.

At present temporary and later on permanent resettlement of the affected with involve satisfactory provisions for their food, medical attention including immunisation against diseases, housing, education, conservancy, sewerage, water (drinking as well as for other use), maternal and child care, security and protection specially of women and children.

Along with all these facilities, there will have to be a plan for the rehabilitation of the affected so that they may be usefully employed enabling them to earn their livelihood and to maintain their families. All the above short-term and long term requirements and needs of the affected are covered by their fundamental "right to life" as interpreted by the Supreme Court in Shahla Zia case.

The present disaster needs to be taken as harbinger of putting our governance in order which is achievable only through a constructive interactive approach by all the three organs of the State i.e. the legislature, the executive and the judiciary.

Principal facilitators of the forum were Ms. Shirani de Fontgalland, Solicitor, Office of the Director of Public prosecutions, New South Wales, Australia, Honorary Consultant to the Sri Lanka Legal Aid Commission and National Centre for Victims of Crime (NCVC) and Project Officer Reginold Kumarasiri.