Declining trend in Human Rights violations

Mahanama TILLAKARATNE, HRCSL Commissioner

There are two government authorised legally constituted institutions, in the country to look into human rights violations; One is the Human Rights Commission, and the other, Presidential Commission of Inquiry regarding abductions, disappearances, unexplained assaults on Civilians resulting in deaths, and unidentified dead bodies.

The Human Rights Commission is empowered to investigate allegations of infringement of human rights, ex mero motu or on complaints made by affected or interested persons.

Though certain elements vigorously complain and criticize the Constitutionality of the Commission, allegedly for want of proper appointments, yet to avoid lawlessness, anarchy and rule of the wild ass, Parliament in its wisdom had made provision for appointment of members of the Commission by His Excellency the President, in the manner provided for by the Act. If the dispute over appointments to the Constitutional council is solved, the problem if any, will cease to exist for which the Commission cannot be blamed.

Section 3 (2) of Act 21 of 1996 states “The members of the Commission shall be appointed by the President, on the recommendation of the Constitutional Council.

Provided however, that during the period commencing on the appointed date and ending on the date when the Constitutional Council is established members of the Commission shall be appointed by the President on the recommendation of the Prime Minister in consultation with the Speaker and the leader of the Opposition.”

Section 10 of the Act stipulates the functions of the Commission, which include power to inquiry into the investigate complaints regarding procedures to ensure compliance with the provisions of the Constitution relating to fundamental rights, and to promote respect for and observance of fundamental rights.

Most important of the powers vested in the Commission are to inquire into and investigate complaints regarding infringements or imminent infringements of fundamental rights, and to resolve them by conciliation and mediation.

Section 10 (a)(b)(c) are concerned with fundamental rights, whilst (d)(e) and (f) deal with functions relating to human rights.

Section 33, the interpretation clause defines the fundamental rights as those declared and recognized by the Constitution and human rights mean a right declared and recognized by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

There are about thirty-five International Treaties relating to Human Rights and Humanitarian Law;

Human Rights Law and Humanitarian Law are branches of International law, and differs from National law, which is constituted of branches like, Criminal Law, Law of Property, Contracts etc. Human Rights law and humanitarian law developed largely since World War II.

Thomas Buergenthal in International Human Rights in a nutshell (St. Paul, M.N. West Publishing Co. 1988) P.1 defined Human Rights law as, “the law which deals with the protection of individuals and groups against violations by government of their internationally guaranteed rights, and with the promotion of these rights”.

It is apparent from this definition that human rights law to become a part or branch of local law, has to be incorporated into the local law, because they only constitute internationally guaranteed rights, and above all, to protect persons from the acts of the governments which result in violations of such rights.

One has to bear in mind that our Supreme Court is the guardian of fundamental rights enshrined in the Constitution, which is the Supreme law of the land. So fundamentally, in case of breach, it is the Government of the particular country that is blamed, and the attack is on the Government.

Infringement of fundamental rights and the human rights had been of frequent occurrence even in a small way since the ancient times, and of much significance during 1971 insurrection, 1983 communal disturbances period, and 1988-1989 second insurrection.

The human rights activists mostly foreign funded NGOs and their agents and persons with different agendas, and many foreign countries, despite occurrence of violations in their own country almost daily, have been activated to find fault with the real protectors of such rights like the Commission, and aimed at devastating the image of the country, by baseless and flimsy allegations.

Human Rights operate only during peace-time, because a Government is occupied with the paramount task of securing the independence and the national security of the State, rather than protecting human rights of individuals.

Even the fundamental rights have restrictions prescribed by the Constitution itself, Article 15(1) stipulates that the rights declared by Articles 13 (5) and 13 (6) shall be subject to such restrictions as may be prescribed by law in the interests of national security. In the recent past so many organizations engaged in the human rights field, used a ramshackled band wagon exalting and expanding violations occurring in a large magnitude, and the data statistics and figures shown by them are beyond reality.

Inquiries by the Presidential Commission of Inquiry reveal that, these figures and details were the impressions of the complaints and nearly 90 per cent of the disappeared persons in the other areas like Anurdhapura, Polonnaruwa, Kalutara and Colombo Districts have left home temporarily over personal reasons or family disputes and have been found or returned.

Even in Jaffna there were instances, where the son or husband being scolded by home people for excessive drinks, leaving the house and returning after a few days, or the husband eloped with the sister-in-law and admitting at the Police station of their guilt; Human Rights Commission in 2006 received 7617 complaints of violations like torture, transfer, promotional disputes, recruitment, interdictions, retirement, extensions, Termination, Pension, school admissions etc.

Only 5005 were found to be within the Mandate, and thus 1720 were ruled out. 892 were awaiting further information from petitioners. Majority of inquiries were concluded.

Statistics available indicate a sharp drop in complaints, and the present Commission has taken steps to expedite inquiries, and to overrule at the point of institution itself the complaints not within the Mandate, and to direct parties to proper places or forums for relief.

The Commission inquiring into abductions, disappearances etc. has a totally different picture in contrast. There, full-scale inquiries reveal that except a very few, 90% of the disappeared have come back.

These figures show the reality and the exaggerated figures from dustbins only taint the image of the land.

The applications are thoroughly scanned by three Senior lawyers, constituting a panel, and directed to investigating officers and inquirers for inquiry, and a new methodology is adopted to dispose of the matter within three months.

Torture cases from 01.01.2005 to 30.07.2005 were 366, and arrest and detention only 204.

Torture from 01.01.2006 to 30.07.2005 were 345, and arrest and detention only 289

Torture from 01.01.2007 - 30.07.2007 were 304 and arrest and detention 329.

Out of these 54 torture complaints and 116 arrest and detention cases were finally disposed; these were during the period of 01.01.2007 - 30.07.2007. Occasional Police visits by officers contribution to the decline in torture.

In the year 2006, the Economic, Social Environmental matters referred to, were the highest 1271, and steps not taken by petitioners totalled 499. Once a matter is entertained it is for the petitioner to pursue and co-operate to end the issue.

Even the prescriptive period has been restricted to 3 months; earlier all applications irrespective of the Mandate and time element, were entertained, thereby creating a backlog, and the old cases are expeditiously attended to, under the new scheme. There were pure civil matters entertained indiscriminately, and time wasted on them.

The irony is, thus who were num, during flagrant infringements referred to above, are now on the bandwagon.

It is always the affected aggrieved party who comes before both Commissions seeking relief and redress, and the organizations are destructively critical of the activities.

Those who leave the country for better postures, persons in hiding, leaving residence on personal grounds could never be identified as ‘disappeared’ under the warrants and Mandate.

Thus in reality they are there, and the statistics are always available in the truth, and the Commissions assert despite in few instances, all those alleged disappeared are alive, and investigations commenced regarding actualities.

The regional centres of the Commission at Jaffna, Kalmunai, Batticaloa, Vavuniya 
and Trincomalee had received complaints of abductions and disappearances in the months
from January 2007 to July 2007 as follows:

Jaffna		-	201	-	offenders unknown
			42	-	by L.T.T.E.
Kalmunai 	-	13	-	Offenders unknown
			7	 	by L.T.T.E.
			10	-	by Karuna Group
Batticaloa 	- 	63	- 	by unknown persons
			21	-	by Karuna Group
			9	-	by L.T.T.E.
Vavuniya 	-	82	-	by unknown persons
			22	-	by Karuna Group
Trincomalee	-	06	-	L.T.T.E
			29	-	by unknown persons
			04	-	by Karuna Group

(The writer is a former High Court Judge)

International Children’s Day celebration 2007

Thilani RAJAPAKSE

‘Today the children are insecure in the society. There was no need of special protection to children in my childhood,’ said Justice D. Jayawickrama, retired judge of Court of Appeal and the Commissioner of Human Rights Commission of Sri Lanka addressing the “International Children’s Day” celebration organised by the HRCSL for the Principals and Deputy principals of Homagama Education Zone. He further stated that human rights are concepts which were in our ancestral societies and it is

 not a western concept.

This celebration was organised by the Monitoring and Review Division of the HRCSL with the assistance of Ms. Chitrangani Lunuvila, Zonal Director of Education, Homagama. There were about sixty participants including Principals, Deputy Principals and Heads of Disciplinary Committees of schools from the schools of Education Zone of Homagama.

Several cultural events were presented by the students of Homagama Central College and Homagama Maha Vidyalaya.

The guests of the programme were Mr. Mahanama Thilakaratne, retired Judge of High Court, Commissioner of HRCSL, Mrs. Indrani Sugathadasa, Secretary of Ministry of Child Development and Women’s Empowerment, Mr. Jagath Wellawatte, Chairman of National Child Protection Authority, Mr. Anton Sirikumara, ASP-Homagama South.

Mrs. Thilani Rajapakse, Attorney-at-Law, Director, Monitoring and Review Division, Human Rights Commission of Sri Lanka explained the objectives of the programme.

She explained that according to the section 10(f) of the Human Rights Commission Act the functions of the Commission shall be to promote awareness of, and provide education in relation to, human rights.

She further mentioned that for the purpose of discharging its functions the Commission undertakes research into, and promote awareness of, human rights, by conducting programs, seminars workshops in accordance with the section 11(f) of the said Act. Summary of the objectives are as follows:

* To provide awareness on human rights and child rights.

* To protect and safeguard the rights of the students.

* To discuss how to protect child rights within the role of teachers.

* To create an official support system for child rights violations and to take necessary steps to minimize them.

* To receive complaints regarding human rights violations and referring them to the relevant institutions for necessary action.

* To create a mechanism to organise seminars, lectures and workshops for school students to educate them on protection and promotion of human rights.

Main lecture of the programme was delivered by Mr. Nimal Punchihewa, Additional Secretary of the Human Rights Commission. The theme of his lecture was “how to protect child rights within the role of the teachers.” He explained the gathering about building relationships with the students to create a human rights respected future society.

He pointed out that a situation has been created where our young generation today is not giving right respect to teachers, parents etc. he said. He emphasized that corporal punishment should be eradicated from schools as we can’t build good citizens by punishments.

He further mentioned that the teachers must work as real professionals and should be an example to the society.

(The writer is Director Monitoring and Review, Human Rights Commission of Sri Lanka)