Human Rights: Public Relations and Private Agendas
Dr. Rajiva Wijesinha
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 not surprising, 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.
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.
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. The writer is the
Director General of the Secretariat for Coordinating the Peace Process.
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