ASIA/SRI LANKA: UN human rights monitoring urgently needed to resuscitate criminal investigations
The Asian Human Rights Commission strongly supports the call for a human rights monitoring mission by the United Nations
as a measure to resuscitate the severely damaged criminal investigation capacity of the Sri Lankan policing system.
The state, as the sovereign, owes an obligation to investigate into all crimes irrespective as to whether these are done
by organised criminal gangs, terrorists or state agencies themselves. This obligation implies that there needs to be a
competent and impartial criminal investigation branch within the policing system which has not been corrupted or
impaired by political interference. There is consensus within Sri Lanka that the capacity of the police investigation
system has been gravely diminished due to political interference over several years and that its internal capacity for
investigations has become extremely limited. When it comes to organised crimes, acts of terrorists and also
extrajudicial acts of the military and the police, the police investigation system has not demonstrated any capacity for
effective investigations in recent years.
The inability to ensure effective criminal investigations is a fundamental failure of the state in ensuring security to
its people. This situation needs to be cured immediately. A United Nations human rights monitoring body can assist the
revival of this system and without such assistance there is no predictable way of how such a revival might happen.
The United Nations High Commissioner for Human Rights reiterated her call for human rights monitoring in her statement
to the Human Rights Council on December 10th 2007.
“I was very pleased to visit Sri Lanka from 9-12 October at the invitation of President Rajapakse and am grateful for
the broad access I was given to Government representatives, political parties and members of civil society, including
the troubled northern region of Jaffna. I regret not having the opportunity to meet with representatives of the
Liberation Tigers of Tamil Eelam (LTTE), as I would have liked to convey to them directly my deep concern with their
serious violations of human rights and humanitarian law, including recruitment of children, forced recruitment and
abduction of adults, and political killings.
During my visit, I paid special attention to the issue of abductions and disappearances, which have been reported in
alarming numbers over the past two years. While the Government pointed to several initiatives it had taken to address
these issues, there has yet to be an adequate investigation or credible public accounting for the vast majority of these
cases. I am also concerned about safeguards for those detained under the emergency regulations, including during recent
mass arrests in Colombo.
Regrettably, the various national institutions and mechanisms that could be expected to safeguard human rights have
failed to deliver adequate protection. In particular, the Human Rights Commission of Sri Lanka, which had previously
enjoyed a proud reputation internationally, has had its independence compromised by the irregular appointment of its
Commissioners and the credibility of its work has suffered. Further, despite high expectations, the special Commission
of inquiry appointed by the President more than one year ago to investigate high profile killings and disappearances has
yet to complete any of its cases. The Eminent Persons invited to observe the Commission have expressed concerns about
its compliance with international standards.
In a highly polarized context, where human rights information is easily manipulated for propaganda gains, there is a
critical need for an independent actor to gather information and publicly report on the human rights situation. For this
reason, I have suggested that the Government would benefit from the support of a presence of OHCHR in the country, with
a full mandate incorporating technical assistance and public reporting. Since my visit, my Office has engaged in
discussions with the Sri Lankan authorities on possible models involving an OHCHR presence working alongside national
structures. We have reached no agreement on a formula by which independent, public reporting by OHCHR could be ensured.
OHCHR will continue to assist the authorities in strengthening the national human rights system, but this will fall
short of meeting the critical protection gap.”
The phantom limb in human rights protection
A phantom limb is the sensation that an amputated or missing limb is still attached to the body and is moving
appropriately with other body parts. The pronouncement of the Sri Lankan government that it has adequate local
mechanisms to deal with investigations into human rights violations reflects a similar mentality. The recent statement
of Mahinda Samarasinghe, the Minister for Disaster Management and Human Rights is the latest expression of this same
mentality. Where are these investigation mechanisms, one may ask and the answer would not be different to one that might
come from an amputee who feels as if his missing limb still exists, like the missing limb a credible investigation
mechanism simply does not exist.
The amputation of the investigation mechanism for human rights abuses has taken place over a long period of time with
the operation of emergency regulations, anti terrorism laws and the deliberate dismantling of the basic institutions of
public administration including the institutions of the administration of justice. The large scale killings that took
place in 1971 and 1986 to the 1990 period in the south and the continuous repression in the north and east from 1978 to
the present day required that no credible investigations could be allowed into allegations of human rights abuses as it
would cause unrest in the military and this would affect the stability of the ruling political regimes. The limitations
imposed on investigations naturally infected the prosecution system under the Attorney General's Department, which was
often required to cooperate in the cover up of the perpetrators and guarantee them impunity. The independence of the
judiciary was crushed by the pressures from the presidential system as well as through legal limitations imposed by
various constitutional amendments and emergency laws.
The former Supreme Court Judge K.M.M.B. Kulatunga recalls a time when Sri Lanka did have a competent criminal
investigations capacity within its police, even to deal with very serious crimes as evidenced in many cases reported in
the new law reports. These included political cases such as the assassination of Prime Minister S.W.R.D. Bandaranaike
and the attempted coup of 1962. However, this system was seriously interfered with in order to facilitate the causing of
extrajudicial killings, disappearances and torture on a large scale through the police, military and paramilitary
groups. Today the system does not have the capacity to even investigate ordinary crimes let alone those crimes done with
the connivance of political authorities for military purposes. The ugly situation that prevails is manifested through
the constant killing of arrested persons in police custody, allegedly whey they try to throw grenades at police officers
while they are taken to find concealed objects. The falsification of information in order to justify crimes committed by
state agencies, which would appear to any reasonable person as pathetically ridiculous, is offered in the name of the
sovereign state of Sri Lanka by the state agents and its propaganda units.
The phantom limb on criminal investigations in Sri Lanka is manifest daily in many of the statements that come out under
various propaganda units such as the Peace Secretariat, the Geneva Consulate, the office of the Minister of Disaster
Management and Human Rights, the Secretariat of Defense and even in the name of the President himself. The claim of the
existence of a competent and credible criminal investigation capacity is offered both as a cover up for the incapacity
and unwillingness to investigate human rights abuses, as well as to counteract any calls for assistance to the Sri
Lankan government by the international community by way of human rights monitoring through the United Nations. The
phantom limb mentality prevents the finding of real solutions to the real problems that make Sri Lanka one of the most
lawless places in the world.
The Asian Human Rights Commission in the past ten years has consistently pointed out the way the Sri Lankan criminal
justice system has become dysfunctional (kindly see http://www.ahrchk.net/pub/ - Sri Lanka's Dysfunctional Criminal
Justice System). As long as this situation remains, life will remain a nightmare to all civilians in the country. To
this civilian nightmare is now added the targeting of civilians by the LTTE, the government as well as other
paramilitary groups which operate freely in the country. This climate is also unscrupulously used naturally by the
criminal elements who try to profit from this situation by way of all sorts of crimes including kidnapping for ransom.
It is not possible to protect the people with a phantom limb. The sooner this illusion is demolished the better it will
be for all the people of Sri Lanka.
Human rights monitoring and the independence of the judiciary
In the reply of the Sri Lankan government to the High Commissioner’s speech there was an insinuation that such
monitoring would infringe upon the sovereignty of Sri Lanka and particularly the independence of the judiciary. There is
no basis at all to see a conflict between support for investigations into human rights abuses by the United Nations and
the independence of the judiciary. The judicial branch will have all the powers it presently has for pre-trial, trial
and appeal functions, as well as other functions under writ jurisdiction and fundamental rights. Human rights monitoring
is about how the investigations are done and not about how courts conduct their affairs under the laws of Sri Lanka. The
only problem that the human rights monitors would address is the very absence of such investigations, which prevails at
present due to problems within the policing system. By engagement in such investigations the present impasse can be
addressed and the police themselves will benefit when the likelihood of political interference into investigations is
removed. Once United Nations human rights monitors can address the limitations imposed on the Sri Lankan police for
political and other reasons, competent Sri Lankan criminal investigators themselves will be able to play their role and
regain their lost professional prestige and dignity.
Therefore we call upon the citizens of Sri Lanka to avail themselves of this invitation made by the United Nations High
Commissioner for Human Rights in order to address one of the problems that all citizens are well aware of in terms of
the defective policing system of Sri Lanka. Here the country has an opportunity to deal with the problem that has
troubled the nation for several decades now. If the country’s criminal investigation section is resuscitated it will be
possible for the people to deal with such massive problems as corruption. To defeat corruption is not to defeat
sovereignty but to assert it. It is quite clear that what the spokesmen against human rights monitoring are concerned
about is not defending the sovereignty of Sri Lanka but defending a bad policing system, abuse of power and the massive
corruption that prevails within the country.
ends