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The time for the HRCSL to redefine its role

12 May 2022

With the events that took place on Monday (9), Sri Lanka entered into a new phase in its struggle to remain a democracy while also struggling to recover from the worst economic crisis it has ever faced, and at the same time facing the challenge of re-establishing its basic legal structure, which has suffered immensely during the recent decades. All these challenges are faced while the people are actively involved and are in the streets demanding these changes. The resignation of Prime Minister Mahinda Rajapaksa is a result of such demands by the people. These resignations open up enormous possibilities for positive changes in the country, if this situation is utilised wisely by the people and those who could play an important role in facilitating the people’s discourses towards achieving a more permanent state of things where the economy and the society could function within an atmosphere protected by the law.  It is in this context that the Human Rights Commission of Sri Lanka (HRCSL) has shown that it could play an active and positive role under the circumstances. The HRCSL has courageously intervened in situations when the people participating in peaceful protests were exposed to various attacks and threats. It has very clearly assented to protect the people’s right to peaceful assembly.  The manner in which the HRCSL acted quickly when the shooting took place at Rambukkana is an example of vision as well as of efficient intervention. It made its position very clear, and quite loudly, so that the nation and particularly the law enforcement agencies received a clear message that the right for peaceful assembly should not be disturbed due to any reason, including interference by the Police.  The HRCSL similarly acted quickly with a clear message on several other instances during April – which is perhaps the most important month in the democratic history of Sri Lanka. On the one hand, during that month, the people showed their capacity and will to intervene in public affairs quite consistently and with a rare sense of unity among the people. In the past, there had been the accusation that the people were unwilling to actively fight against injustices and human rights abuses. Another accusation was that the people were divided in various directions on the issues of ethnicity, race and religion, and the like.  However, the month of April followed by this month of May has shown that the people have seemingly learned from past mistakes and are showing a rare sense of commitment as well as maturity in expressing their protest demands, and making sure that their demands are those that benefit the entirety of the people.  This change that is taking place in the country should provide the HRCSL an opportunity to redefine itself and to reassert itself as a premier institution that is devoted entirely to the protection of human rights. The Paris Principles on which such national institutions are based, of which the Sri Lankan counterpart is the HRCSL, have a very wide mandate for the protection of the people’s rights. However, the past record of the HRCSL is not impressive.  This past record is not a creation of the Commissioners or the staff of the HRCSL itself. The overall political climate was one which operated within the framework of the 1978 Constitution, which has placed enormous limitations on the functioning of democracy and the rule of law. Often, the national security laws of various sorts, such as the Prevention of Terrorism (Temporary Provisions) Act and also Emergency Regulations, have enlarged the suspension of basic rights over long periods. The overall psychological context that was created by the various regimes was not one of encouraging the people’s participation, but one that discouraged such participation.  Under those circumstances, the HRCSL was a much-neglected institution. However, there were times when some of the Commissioners attempted to step outside those boundaries set by the political system and attempted to play a more assertive role. Despite all of that, the national and the international reputation of the HRCSL remained quite low.  At present, the country is going through a period where a considerable section of the population has begun to understand that they must actively participate in the protection of their own rights, not only for their individual benefit, but also to ensure the stability of their economy. The present serious crisis of the economy based on the loss of foreign currency reserves has not been due to any unavoidable reason. The deliberate neglect of the basic institutions that were supposed to protect the country’s economic infrastructure was partly due to the fact that the people themselves were not actively engaged in the role of being eternally vigilant about what happened through their political and other institutions.  The basic reasons for the fall of standards in the institutions that protect the country’s regulatory framework of finance – i.e. institutions such as the Central Bank of Sri Lanka, the Treasury, the Inland Revenue Department, the Customs, and the like – was a result of an overall neglect of the supremacy of the law and the rule of law that spread into the entire system.  It is not possible to protect human rights as envisaged in the United Nations Conventions and also the Sri Lankan law without there being a well-functioning system of justice where inquiries into crime are done competently and independently. The same could be said about the role of the prosecutors. Their role is essential to guaranteeing stability in all aspects of society, including in the areas of financial controls and the elimination of corruption. If, due to political interference or other reasons, these institutions do not function properly, the result would be the same as what Sri Lanka is experiencing now. One after the other, these institutions will function arbitrarily and a lot of unscrupulous persons would attempt to take advantage of this poorly functioning system.  A national Human Rights Commission like the HRCSL can function properly only if the country’s basic legal institutions are functioning with a high degree of credibility and efficiency. Thus, a well-functioning policing system that is capable of credibly inquiring into all crimes including all violations of rights, a prosecutorial system that is completely professional and will not sacrifice the basic principles of the profession for political or other reasons, and a judiciary that has the power, capacity, and will to ensure that the administration of justice is entirely controlled by itself, are vital.  It is within such an environment that national institutions like the HRCSL can fulfil its role of ombudsman. The HRCSL can never be a substitute for a well-functioning system of the basic institutions of justice. The role of national institutions is defended in the environment that is created by the institutions of justice.  The challenges that the HRCSL will face in these times where the people are demanding change (by “change”, they mean system change) are that it could contribute a great deal as an educator and a guide to the people about the changes that are really needed within the system of policing in Sri Lanka, particularly in the area of investigations into crimes, including human rights violations, in the prosecutor’s department and also in the judiciary. This educator’s role is very essential, as people who are actively engaged in demanding change do require knowledge to guide their thoughts, so that they can make the right demands for changes.  The fact that they are actually engaged and are on the streets means that this will be a time where people can wield a certain power in getting their demands being heard by those in authority, and there is quite a likelihood that such will be very much greater in these immediate one or two months for some substantial changes in the system of justice.  While the interventions by the HRCSL for the protection of the people is in itself quite educative to the people about their rights under the present context of Sri Lanka and the extent to which the basic legal system has collapsed, the HRCSL should redefine itself and be an example to other developing countries about the role it could play in creating the legal environment needed for the protection of rights.  The institution of the ombudsman in developed countries is merely a fine-tuning institution, where the basic institutions of justice are to a great extent functioning quite adequately. It is not possible for national institutions in a country like Sri Lanka to merely imitate those that are functioning in developed countries. They need to, on the one hand, play the role of contributing to the creation of the very institutions which in developed countries can be taken for granted.  Thus, both in a practical and theoretical field, the HRCSL has an opportunity to contribute not only to the nation’s welfare by taking a more proactive role in being an educator and a guide to the people as well as the State on the kinds of legal reforms that are needed, particularly in the sphere of the protection of people’s rights, but it could also in that same role contribute to resolving some of the problems that are faced by the national institutions in many parts of the developing countries, where for a long time, these institutions have not been able to play the role that was initially expected of them in terms of the Paris Principles.  (The writer is the Asian Human Rights Commission’s Policy and Programmes Director)  …………………………….  The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.

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