We missed key opportunity to engage on HR: Ramani Muttetuwegama

• UNHRC decision to maintain OHCHR’s right to handle fact-finding remains
• SL can still influence UNHRC in certain aspects at session
• Difficult to demand co-equal position if SL continues lack of regard for HR maintenance
• Doubts on whether SL has demonstrated shift in attitude towards maintaining rights

By Yoshitha Perera

The 48th Session of the United Nations Human Rights Council (UNHRC), scheduled to commence tomorrow (13), is an important opportunity for Sri Lanka to review its human rights (HR) position with the international community.

The UN’s resolution on “Promoting reconciliation, accountability, and human rights in Sri Lanka”, adopted in March this year, not only focuses on international monitoring of alleged human rights violations, but also mandates the Office of the UN High Commissioner for Human Rights (OHCHR) to collect, consolidate, analyse, and preserve information and evidence to develop possible strategies for future accountability processes, to advocate for victims and survivors, and to support relevant judicial and other proceedings.

In an interview with The Sunday Morning, former Human Rights Commission of Sri Lanka (HRCSL) Commissioner in Charge of Investigations and Inquiries and prominent human rights lawyer Ramani Muttetuwegama shared some important facts on why the upcoming UNHRC session is important to the country, and also the progress the country had made regarding to the human rights situation.

Following are excerpts from the interview.

How important is the upcoming UNHRC session to Sri Lanka?

What’s most important about it is that there will be an oral report from the OHCHR on progress made with regard to the mandate given by the Council through its March resolution on the human rights situation in Sri Lanka.

Then, Sri Lanka will be expected to respond to that oral submission. But, irrespective of whether Sri Lanka responds or not and whether anything further is decided by the Council or not, the Council’s decision to maintain the OHCHR’s right to handle the fact-finding process remains. We can’t get that changed at this UNHRC session.

The last session, which was held in March, was key; in a way, we missed our opportunity to engage with the international community on our human rights situation, and now we are stuck with the fact-finding process.

There are certain things for which we can still try to influence the UNHRC while maintaining our behaviour as a country at the session. For instance, if we are going to be hostile towards the High Commissioner’s Office, the possibility that they’ll permit us to participate as an equal partner in the (fact-finding) process is unlikely. Now, we must find a way to prove that we have built this equal partnership with the international community.

We will also find it very difficult to demand a co-equal position in the process if we continue to display a lack of regard for the maintenance of the human rights of our people. Then, of course, a whole bunch of issues will come into play. The most important thing about it is that this is our first opportunity to engage with the High Commissioner at the UNHRC’s official sessions.

We have to be wary of this process at this time, since the High Commissioner has the mandate for fact-finding, and based on the OHCHR presentation, we could face more severe consequences. For example, if it is demonstrated through the fact-finding process that something went wrong in the country during the period and that it has not been adequately addressed, then the member states have the right to make a collective decision, and we may lose the support of key member states.

We have to keep in mind that there are two countries being covered at the session this time: Venezuela and Nicaragua. These countries are already facing certain sanctions from certain member states of the Human Rights Council. We shouldn’t take it lightly. With the pandemic and our current economic situation, we have to keep as many friends as possible.

Do you feel Sri Lanka has made progress in fulfilling its human rights commitments?

We had six months to achieve certain things by ourselves without any assistance from anybody. However, my question is, have we demonstrated a shift in attitude in any way? For instance, take the presidential pardon mechanism. Although the Government released individuals who were held for many years under the Prevention of Terrorism Act (PTA) without being charged, it also pardoned a convicted murderer. Soon after, he was even appointed to a government position. This situation explains that our political system is interfering with the judicial system.

Let us also consider the Presidential Commission of Inquiry (PCoI) on Political Victimisation. In the context of human rights, that process too interferes with the Judiciary. However, when we sent the preparations report for the UNHRC sessions, we mentioned the above PCoI as a plus factor of our human rights commitments.

As another plus factor, the Government mentioned the continuation of the Office on Missing Persons (OMP) but left out that the present Chairman of the OMP is the same person who chaired the PCoI on Political Victimisation. So again, though we have an OMP, it is of no use.

Recently, on the International Day of the Victims of Enforced Disappearances (30 August), in many villages, families who just attempted to light a lamp or remember their loved ones were beaten up, and some of them were arrested by the authorities. So, we can’t really say that we have an OMP when our authorities are not allowing the families of the disappeared to even remember their loved ones.

More recently, during the last two weeks, numerous arrests, detentions, and beatings were carried out by the Police in the North and East. The victims also reported the lack of an investigative mechanism.

We seem to be running into the same problem highlighted by the UNHRC Resolution in March.

One of the concerns in the High Commissioner’s report is about unequal treatment of minorities – and now we see that many minorities are being beaten up for supposedly violating the quarantine regulations.

One aspect in which we have made progress during the last few months is in the amendments to the Muslim Marriage and Divorce Act (MMDA). However, it has not yet been presented in Parliament as a bill.

Are the processes that were launched during your time in the HRCSL being continued?

They haven’t halted anything, but the focus keeps shifting. I think the HRC operates differently; there are commissioners as well as officers and they keep following up on these inquiries and processes.

There have been concerns raised by various quarters in the country over the alleged abuse of human rights in the form of suppression of rights/freedoms and arbitrary detentions. How do you view this?

We are going through a pandemic, and we have provisions to manage the spread of the pandemic. Some time ago, when we were at the HRC, we made some observations on how that can be done. However, what we are seeing currently is an endless process of not recognising the legal basis for controlling the spread of the pandemic. That is one of the problems.

Another matter is the unequal application of these rules. Poor people are constantly being arrested; Tamils and Muslims in the North and East are being tortured for supposedly breaking the quarantine regulations. However, we don’t see the same happening with rich people, famous people, or people in the South. When it comes to travel restrictions, it is far more operational in Mannar than in Matara.

Then the other matter is that the law in place to help promote human rights, the right to freedom of expression, and also better relations within communities – i.e. the International Covenant on Civil and Political Rights (ICCPR) Act – is being used to stop people from speaking up about the unequal use of law and unequal treatment of minorities. All these are serious situations and issues.

What processes do you propose the Government put in place to address human rights issues?

In 1995, there was a presidential directive on the arrest and detention of people where the Police were reminded that there was only a certain way that the people could be arrested and detained. At this moment, issuing such a directive is necessary, as the Police keep forgetting certain things.

The National Police Commission (NPC) should take steps to make sure that the officials who do not follow these rules are immediately disciplined and do not qualify for promotions again.

We can’t have a process where the administration appoints convicted criminals to special leadership positions in the Government. I think the Government should have a better appointment process.

We can also introduce some other basic things, such as bringing back the National Procurement Commission and changing the way of appointing people to national institutions. However, I don’t think the Government needs to set up a process; it just needs to change its mindset. Setting up yet another process is no use if there is no commitment.

How important is it for Sri Lanka to engage with the international community when addressing issues related to human rights?

We are only an island from a physical point of view; now, in this era, the whole world is connected. As our communities live in other countries, it is highly important to address issues related to human rights in our country. We can say that we have difficulties in managing human rights matters and explain these things to other countries, but we can’t pretend that there are no human rights issues in the country.

Is there any time-bound action plan on reforms with regard to the human rights situation that we are maintaining?

There was an action plan developed by the then ministry that handled matters related to human rights, which no longer exists. Since then, I have not seen any action plan by the present Government. It is sad that we don’t have a national process and we have to abide by the Human Rights Council’s process, where we have to offer explanations to them every quarter when the Council meets.

There’s a lot of anxiety in this country about international interference in our national affairs. We only have to follow a simple process, and that is to deal with our internal affairs. And when we do that, there is no room for the international community to step into our national affairs.

What is your view on the Government’s move to impose emergency regulations to control food prices and prevent hoarding? Is it necessary at this moment?

The people think that they can hoard essential food items just because they are expecting the prices to increase – that is a disgraceful thing. Nevertheless, why are we using emergency regulations that are supposed to be for public security, public health, or public order to manage a basic commercial matter? We have the Consumer Affairs Authority (CAA) which can walk in and take control of these things.

What is your view on appointing an advisory board to make recommendations to those detained under the PTA?

We have to change the process of the PTA. In Sri Lanka, in the mid-1990s, the Attorney General’s (AG) Department reviewed a large number of files within a short period of time and gave recommendations for the release, rehabilitation, and charges to be expedited, etc. So, the Department also has the capacity to do that.