”Several victims and their families have complained to us that HRC inquiries end up as a form of harassment and punishment to them. Complainants turn up on days and times the HRC invites them to come for inquiries, only to find that relevant state officials summoned by the HRC do not turn up, without any notice, and that HRC doesn’t seem keen to take action on them, although the HRC is empowered do so under article 21 of the HRC Act.”
Ruki Fernando
Follow up to the interventions made at the Consultative Forum with Civil Society on 11th July 2011
I’m writing with regard to the interventions I made at the above forum, and requests by the Commission to submit my comments, requests for clarification and suggestions in writing to the Commission.
At the outset, I would like to thank you and the HRC and also the UN, for organizing this forum, and in particular for the long time provided to members of civil society to share their comments, questions, suggestions etc.
Despite bad experiences with the HRC in the past, and despite doubts and concerns I had, I attended this forum in good faith, hoping that this event would be first step to a mutually beneficial and cooperative relationship between the HRC and civil society, to further the cause of promotion and protection of human rights in Sri Lanka. It is in line with this commitment, that I’m writing this letter, and express readiness to meet and further discuss matters contained in this letter as well as any other matters related to the work of the HRC and civil society.
General Comments:
1. Based on past experiences of interactions with previous Commissioners and staff of the Commission, I have reasonable doubts whether this forum was held as a showcase event, to display cooperation and consultation with civil society, as a tool to regain A grade from the International Coordination Committee and the Asia Pacific Forum on National Human Rights Institutions, and also to attract funding from donors. However, I hope that this is not the case, and that this would be made evident by actions, rather than words, of the HRC in the coming months.
2. The confidence I and several civil society actors have in the HRC has declined since 2006, based on the inability of the HRC to take decisive action and positions based on human rights standards in a period in which we witnessed large scale human rights violations and repression of civil society. This confidence can only be regained by actions of the HRC, and not by nice words and promises at consultations and meetings.
3. The last meeting that I had with the Chairman and Commissioners resulted with the Commissioners threatening me with contempt, due to my assertion that their appointment was unconstitutional. It is my hope that interactions with you and the new Commissioners will not lead to such incidents.
4. On several occasions, in 2010 and 2011, HRC officers refused to accept complaints regarding sensitive cases, when family members and victims tried to lodge complaints. Due to interventions by LST staff who accompanied these complainants, and who pointed out the functions, powers and previous practices of the HRC, the complaints were subsequently accepted with reluctance. It is hoped that HRC officers will not continue this practice in the future.
5. Several victims and their families have complained to us that HRC inquiries end up as a form of harassment and punishment to them. Complainants turn up on days and times the HRC invites them to come for inquiries, only to find that relevant state officials summoned by the HRC do not turn up, without any notice, and that HRC doesn’t seem keen to take action on them, although the HRC is empowered do so under article 21 of the HRC Act. This has made it appear to the complainants that the HRC is biased and sympathetic towards alleged perpetrators of violations, at the cost of victims who are complainants.
6. In the last few years, it appears that the Commission seems to operate behind a veil of secrecy, about their positions, interventions and results of interventions. Some specific examples and requests for clarifications are mentioned below.
Specific requests and suggestions:
1. To inform civil society groups about any recommendations made by civil society in previous consultations held in 2010 that were implemented by the HRC, beyond holding another meeting.
2. To inform civil society and general public the position of the HRC with regard to ratification of the Optional Protocol to Convention against Torture and Convention against Disappearances. Whether the HRC feels that the Government of Sri Lanka should ratify above or not, and reasons. And if it’s position is that the Government should ratify these, what does it intend to do, and when, in line with it’s function to “make recommendations to the Government on the need to subscribe or accede to treaties and other international instruments in the field of human rights” (Article 10 -e of the HRC Act)
3. To inform civil society and general public, the position of the HRC with regard to the need for a “Right to Information Act” and “Victim and Witness Protection Act” in Sri Lanka. And if the HRC deems such Act (s) as necessary for the promotion and protection of human rights, what steps it intends to take, and when, in line with it’s function to “advice and assist the Government in formulating legislation and administrative directives and procedures, in furtherance of, the promotion and protection of fundamental rights”. (Article 10-c of the HRC Act)
4. Given the several statements by you, Hon. Chairman, that the HRC has no role to play with regard to the Prevention of Terrorism Act (PTA), I would like to know whether this is a personal position of the Hon. Chairman or that of the HRC? Further, whether the HRC could inform civil society and general public, whether the HRC believes the Prevention of Terrorism Act (PTA) is in line with Sri Lanka’s international human rights obligations, and if no, what actions it intends to take and when, in line with it’s function to “make recommendations to the Government regarding measures which should be taken to ensure that national laws and administrative practices are in accordance with international human rights norms and standards” (Article 10 -d of the HRC Act).
5. To inform civil society and general public, whether the HRC agrees or disagrees with the call of the UN High Commissioner for Human Rights and the Panel of Experts of the UN Secretary General to conduct a international inquiry in regard to allegations of violations of international human rights and humanitarian laws, during the final phase of the war in 2009.
6. To inform civil society and general public, whether the HRC intends to investigate allegations of violations of human rights and humanitarian law during the last phase of the war in 2009, contained in the video documentary screened by channel 4 and variety of reports such as by the University Teachers for Human Rights – Jaffna, Submissions to the LLRC by the Catholic Diocese of Mannar, people of North, including families of those killed & disappeared, Panel of Experts appointed by the UN Secretary General, UN Special Rapportuer on Extrajudicial and Summary Executions, Department of State of the United States of America, International Crisis Group, Human Rights Watch etc.
7. To inform civil society and the general public, whether the HRC officers could make complainants to the HRC aware of the right and possibility they have to submit complaints to UN Special Procedures. Further, whether the HRC officers could assist complainants interested in doing so, by providing complaint forms, assisting and advising them on completing such forms, or referring them to civil society groups that are willing to provide such assistance and advice.
8. In view of the powers vested in the HRC to “undertake research ….and disseminate and distribute results of such research” (Article 11 – f) whether it can produce and disseminate detailed reports on critical topics such as torture, media freedom, disappearances, extrajudicial killings etc. , and thereby also fulfill it’s function “to promote awareness and provide education in relation to human rights”. (Article 10-f of the HRC Act). If the HRC is willing to do this, when could this be done? Given the broad powers of the Commission to receive and obtain information, visit places of detention, investigate violations that happen and imminent violations, the number of complaints it receives to the head office and branches, the HRC appears to be well equipped for this task and it is an area also that could lead to meaningful cooperation with civil society.
9. Whether the HRC could submit to the Parliament, reports on issues related to media freedom, torture, disappearances, extrajudicial executions etc., based on it’s power to “whenever it considers it necessary to do so, submit periodic or special reports to Parliament in respect of any particular matter or matters referred to it, and the action taken in respect thereof” (Article 30 of HRC Act). If yes, when could the HRC do this?
10. Whether the HRC can make available to civil society and general public, the annual reports it submits to Parliament, in line with Article 30 of the HRC Act?
Based on article 3 of the HRC Act, my understanding is that persons having knowledge and practical experience in matters relating to Human Rights shall constitute the Commission, and thus, I’m hopeful that civil society, the government and Sri Lankan citizens in general can benefit from opinions and positions based on human rights standards, coming from the HRC on issues such as above.
Beyond the meeting on 11th July, I would also like to place on record my appreciation for efforts made by some Commissioners to communicate with me afterwards by phone etc., and the positive and immediate response given to a request to meet the Chairman and Commissioners with the family of disappeared activist, Mr. Pattani Razeek to discuss new developments and next steps regarding that case.
Given the fact my interventions were made at an open civil society forum to which media was also invited, I would be sharing this letter with the members of civil society and other interested persons and groups.
I look forward to your response and as mentioned during the consultation and beginning of this letter, I would be happy to meet and discuss with you and other Commissioners and HRC staff, matters contained in this letter, and other matters related to work of the HRC and cooperation with civil society.
Thank you.
Sincerely yours,
Ruki Fernando
Head, Human Rights in Conflict Program
Law & Society Trust (LST)