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Amongst the agencies that I have worked with over the last year to encourage movement on the National Human Rights Action Plan, the most important from outside the government sector has been the Institute of Human Rights. They have been the most regular in attendance of the groups that come together in the informal consultative mechanism I set up together with the Consortium of Humanitarian Agencies, even before I was appointed to convene the Task Force of the Inter-Ministerial Committee responsible for implementation of the Plan. Ironically, given the absence of a Ministry with direct responsibility for Human Rights, sometimes I feel the informal committee we have does more work.

The Institute of Human Rights has done yeoman service in ensuring attention to those victims of human rights violations who fall through the net. The unfortunate obsession with War Crimes spun out by those determined to attack the Sri Lankan State sometimes takes away from the real issues we face. These relate not so much to the victims, direct and indirect of terrorism, which we have now overcome (unless the motives of the less innocent of the War Crimes brigade triumph), but to the naturally vulnerable, who are not of concern to the vast majority of their fellow human beings.

The most appalling example of these are the Women and Children swallowed up through the punitive system we inherited from the British for those considered socially inferior. The British have long moved on from the Victorian systems of incarceration Dickens so graphically condemned, but we still have a Vagrants Ordinance, and government claims that it will be amended have fallen prey to the lethargy of officials with regard to anything they are not compelled or personally motivated to pursue actively. Worse, they seem unashamed of the callousness with which it is implemented.

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I was pleased, if astonished, to see a complimentary reference to my writings in a newspaper. I was reaching the conclusion that no one read any more, or bothered about Human Rights issues except to make political points, so this was heartening. Admittedly a positive reference by one of the editors who publishes my writings is not evidence that they might make a difference, but it may help.

The reference was the more welcome, because this week there is yet another reminder that, as Anne Ranasinghe put it, ‘nothing remains but to mourn’. Nearly two years ago I asked a question in Parliament about women who suffer because of the Vagrants’ Act, and it has not as yet been answered, even though it has been placed on the order paper over half a dozen times. Each time the Minister asks for more time.

A few months ago I was heartened, because I was told there was a flurry of activity in the Ministry of Justice, since they had been told they must supply the answer. But that came to nothing, and on that occasion too the matter was put off. Subsequently I met an official of the Judicial Services Commission, who informed me that the Judiciary did not keep statistics of the people it sentenced. He seemed to think that this was not their business.

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One aspect of politics that draws criticism but little analysis is the phenomenon of large cabinets, with Members of Parliament imagining it their right to be appointed to Executive Office on the grounds of seniority alone.

This is nothing new, though the opposition affects to forget the massive numbers to whom President Jayewardene gave executive positions, which is when the trend really began. Not all his appointments were to the Cabinet or to Deputy positions, since he also had 25 District Ministerships to play around with, in addition to the Project Ministries he had instituted. The result was that at one stage he had over 100 Ministers of various types, in a Parliamentary group of around 140.

It is true that Ranil Wickremesinghe tried to restrict numbers, at a time when the topic had been raised by the JVP, which had made it a condition of the probation period they gave President Kumaratunga in 2001 that she restrict her Cabinet to 20. Unfortunately they failed to insist on a Cabinet amendment to this effect, and Mrs Kumaratunga in fact made it 22, though this did not help her to stay in power.

Mr Wickremesinghe adopted the expedient of appointing 40 Ministers, but putting only 20 of them in the Cabinet, and managed in the process to leave out the Minister of Human Resources Development. He claimed this was an oversight, though in fact it contributed to his favourites, Kabir Hashim and Suranimala Rajapaksa, as Project Ministers of Higher Education and Education respectively, settling themselves in their respective Ministries and exercising equal powers with Karunasena Kodituwakku who was in theory their superior. It was only three months after he first constituted the Cabinet that Ranil expanded it to include Kodituwakku and some others. Despite his claims to be cutting government expenditure, he evidently had no qualms about establishing Ministries which seemed to have no work, for some of his Ministers had no operational funds, receiving only establishment costs in the budget.

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

Last week the Human Rights Commission held a consultation on the current situation in prisons. There was excellent attendance from all relevant agencies, except sadly for the Attorney General’s Department. This was disappointing, but I was not surprised, since the designated officer had failed also to attend the meeting on the same subject arranged recently by the Human Rights Action Plan Task Force.

Though initially the Department had been assiduous in attendance, and extremely helpful, recent developments confirm my view that a largely competent Department has some members who do not care enough about working to deadlines and plans, and cooperating constructively with other agencies for this purpose. This doubtless is why we also have several instances of cases being postponed endlessly, without reference to other stakeholders, as was explained to us passionately by the very competent representative of the Government Analyst’s Department who attended. I hope therefore that the Attorney General will remedy the situation, and take appropriate action, as the Secretary to the Ministry of Justice promised to do when one of her staff, having been designated for the Task Force meeting, failed to attend. Whether such discipline is possible now in Departments that were a byword for efficiency in earlier days is however a moot point.

The meeting began with a succinct introduction by the Chairman to the problem, based on a visit the Commission had undertaken to the prisons. I had been privileged to accompany them on part of the visit, organized very helpfully by the Prisons staff. I have written about this before, and the horror that a matter so easily solved, with moral and social and financial benefits to the country, is left in abeyance for so long. Read the rest of this entry »

The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

There have been some rumblings recently about the conduct of the Supreme Court with regard to the judgment it delivered on the proposed Divineguma Bill. Fortunately I have heard little criticism of the substance of the judgment, and this is as it should be. While I believe that blatantly unjust decisions of the Courts should be challenged, and in particular by academics, using reason (not by politicians resorting to prejudice), this does not seem to me to be such an instance. Where the Courts are allowed discretion, that should be exercised independently and, provided good reasons are given for the judgment, the matter should be allowed to rest.

Of course there is a case for allowing appeals from the judgments of the Courts, but these should be only to superior Courts. Given too that even the Supreme Court could reach erroneous conclusions, occasionally blatantly unjust ones, more often ones that arise from carelessness, perhaps because lawyers failed to make relevant points, there should be provision for review by a larger Bench of the Supreme Court.

In the present instance criticism seems to be on a procedural issue. I am not sure that the issue seems to me particularly significant, but I am glad the question has been raised of how to ensure that the Courts follow the procedures laid down by the legislature, even while ensuring that their independence of judgment is preserved. I have drawn attention to this previously, but of course no one takes such matters seriously until they are personally affected, and perhaps I too would not have thought of the distinction had I not been entrusted with convening the Task Force on expediting implementation of the Human Rights Action Plan.

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

Detainees under the PTAA week ago, in writing about former combatants who have undergone rehabilitation, I referred too to the decision of government to send several of those remanded before the conclusion of the conflict for rehabilitation instead of seeking to punish them. These had been taken in under the PTA or Emergency Regulations, on suspicion of terrorist activity or of aiding and abetting terrorism.

 

I noted then that, from what I had been told last year, there were 4195 of these, a figure which fitted with the 4000 I remembered from my days as Secretary of the Ministry of Disaster Management and Human Rights, which had monitored their fate. We would get regular reports about them from the ICRC, which visited them regularly, and they were also amongst those visited by Manfred Nowak, UN Special Rapporteur on Torture, who produced a very helpful report that we should have acted on more expeditiously.

 

Our Ministry indeed advocated that these remandees should be charged soon or else released. However we understood that at least some of them were extremely dangerous, given the long and terrifying reach of the LTTE in those days. We understood therefore the need for special care, as provided for by the special measures in force, but after the war we suggested that those measures needed to be reviewed, and that decisions as to the remandees should be made swiftly.

 

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

The ICRC study on overcrowding in prisons is deeply depressing, not only because of the sordid picture it reveals, but also because reform would be so easy, if only there were better coordination. Unfortunately we have now in Sri Lanka built up a system in which coordination is almost impossible, and the information that should stir authorities to change things is rarely systematically collated and effectively presented.

It was the Minister of Justice who initially alerted me to the ICRC study, and much of the change has to come from institutions connected with justice. However getting the Judiciary to move is almost impossible, as the Secretary to the Ministry of Justice found, her plea to the Chief Justice to convene a meeting to look at the issue having fallen on deaf ears. I have been luckier, in that I have got replies to letters I sent, but the effect of these is to make it clear that nothing will be done since the judiciary is not responsible for action.

I suppose this is strictly speaking true, but I cannot understand why the judiciary will not develop norms for sentencing based on reducing unnecessary suffering as well as expense. The ICRC study notes that, ‘Out of the total admissions in 2010…… 75.7% (100,191) consisted of remandees, of whom  21.9% spent between 14 days and 1 month in remand and 25.5% (3’367) spent less than 14 days in remand’.

Since the approximate average cost per prisoner per day is Rs. 318.00, the total per month (· Estimated approx total cost for month (100,000 detainees x 30 days) is Rs. 954,000,000, ie 12 billion rupees a year, given that some months are longer.

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 ( sinhala & tamil) as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

A couple of weeks back the Task Force to expedite implementation of the National Human Rights Action Plan for the first time invited persons not in government service to participate in a formal meeting. I had long wanted to do this, but government had, I suppose understandably, been wary of external involvements, which can often be interference. I had therefore continued with the system of informal consultations that had been set up earlier through the Consortium of Humanitarian Agencies, but it was I think a great boon that the Minister had met the ICRC head and realized how much they do and can contribute.

The ICRC after all works only with governments (or parties to conflict) and though, as we saw from Wikileaks, some of its officials succumb to the charm of powerful countries, in Sri Lanka, except for a brief period in early 2009, they have been the souls of discretion. Indeed, a study of communications between them and government during that year (as I saw from the few documents the army gave me when I was looking into claims about hospitals and civilian deaths) would make it crystal clear that we are innocent of the allegations made in the Darusman Report about the conduct of our armed forces during the conflict. Sadly study is something neither we nor our critics engage in.

I was instructed then by the Minister to set up a meeting, which proved most informative, with active contributions also from Ministry of Rehabiliation and Prison Reforms, the Bureau of the Commissioner General of Rehabilitation and the Prisons Department. Unfortunately the representatives designated to attend by the Attorney General’s Department and the Ministry of Justice failed to turn up, though the Secretary to the latter was most apologetic and promised to take up the matter formally with the officer concerned.

I was particularly sorry that the AG’s representative did not come, because he had nominated Suhada Gamlath, who had been Commissioner General of Rehabilitation during the conflict. Though he had not done much for the older combatants, understandably so given his other manifold duties, he had been deeply concerned about the children, which is perhaps why they were looked after positively from early on.

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The National Action Plan for the Protection and Promotion of Human Rights 2011 – 2016 as well as the full series of  Sri Lanka Rights Watch are available at the Peace & Reconciliation Website.

Amongst the Ministries and Departments that have contributed most actively to work on the National Human Rights Action Plan are the Ministry of Rehabilitation and Prison Reform, and the Department of Prisons. They have explained to us the problems they face, and have made it clear that they would welcome a reduction in the numbers they have to take charge of. Unfortunately that aspect of Prison Reform is not their responsibility, it comes under the Ministry of Justice.

Unfortunately Justice too has some difficulties in this regard, for the Prisons are full beyond measure because people are committed to them by Magistrates. Unfortunately Magistrates do not carry out their duties with the full awareness that the system in fact demands of them, and most of them, as the Commissioner General of Prisons told us, hardly visit the prisons, to see the consequences of the, at best careless, certainly callous, approach they adopt.

We heard this during a visit to the Prisons arranged by the Human Rights Commission. Its active Chairman, and members of his staff, including several Commissioners, had asked the Commissioner General to permit us to look over some of the areas in his charge. This is in fact a right the HRC enjoys, and I believe its officials do exercise this, but sadly they do not have enough staff to maintain the practice at the level of frequency that is needed. However, even if they did so, and were therefore able to prevent the abuses that occur because of individual aberrations, they could not prevent the systemic abuse that results because of overcrowding.

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Rajiva Wijesinha

May 2019
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