Policy reform must follow ‘fact-finding’ exercises of the UN

Even allowing for the caustic truth of the 16th century saying that ‘what cannot be cured must be endured’, there is a limit to endurance if Sri Lanka has to undergo repeated visits of international United Nations missions without tangible benefits ensuing to the country’s long-suffering citizens.

A more incisive critique needed

Thus, the recent visit of the United Nations Working Group on Arbitrary Detention (UNWG) to Sri Lanka must be followed by definitive state policy reform, at least to the extent of allowing suspects in police custody, the prompt access to legal counsel without being hedged about by conditions that deprive that basic right of much of its force.

As discussed in last week’s column spaces, the recently gazetted amendment to the Criminal Procedure Code leaves a lot to be desired. It needs to be jettisoned forthwith. A replacement that is in consonance with Sri Lanka’s judicial precedents on the suspect’s right to prompt legal access must be adopted. This is particularly so given the UNWG’s preliminary finding that detainees do not ‘enjoy some of the most fundamental guarantees of due process’ such as immediate access to legal assistance from the moment of the arrest and before their initial statement is recorded. Indeed, the team had noted that the interrogation of detainees by the authorities without a lawyer at police stations is ‘of great concern.’

That said, a more incisive critique of draft laws on counter-terror and criminal justice would have been opportune. Visiting UN teams should desist from gingerly side-stepping specificities in these matters. The value of the visits comes from the propensity to take on the ‘hard issues’ rather than wallow in the easy stuff, as it were. While in other respects, the UNWG’s observations are doubtless useful, it does not take international visitors to announce with pomp and circumstance that Sri Lanka’s prisons are overcrowded. That is a fact that Sri Lankans know very well and have known in fact, for decades even as successive Governments of all party colours have failed to address that problem.

Formal state acts are not enough

And by hard policy reform, I do not mean the mere act of accession to international treaties or their protocols. That ideal faded a long time ago. And the fact that Sri Lanka acceded to the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) on 5th December 2017 and that Protocol will enter into force on 4 January next year gives rise to little perceptible exhilaration. True, the accession is good in principle. The Protocol obliges states parties to establish a system of regular independent visits to places of detention so that torture and other cruel, inhuman or degrading treatment or punishment is prevented. The UNWG’s welcoming of the accession to the OPCAT is to be expected. But that, by itself, does not suffice.

A vast gap exists between these formal acts of accession and practical realities. As a civil liberties lawyer who has actively worked with the International Covenant on Civil and Political Rights (ICCPR), it can be authoritatively said that Sri Lanka’s accession to the ICCPR protocol allowing its citizens the right to take violations of the ICCPR directly to the Human Rights Committee (HRC) once domestic procedures have been exhausted, more than twenty years ago has not been actually allowed to improve domestic rights protections due to an obvious lack of political will. Out of several recommendations handed down by the Committee, not a single recommendation has been implemented. This happened to be the case even before a Sri Lankan Chief Justice (Sarath Silva) employed convoluted logic to determine that Committee members exercise ‘judicial power’ over Sri Lankans, to the profound consternation of international legal experts. This decision which stands as law until it is reconsidered by a Full Bench of the Court departed from the measured thinking of earlier Justices of the Sri Lankan Court who had preferred to judiciously use the ICCPR rights.

In fact, and quite apart from the OPCAT, the truth is that the Convention against Torture which was enacted into domestic law in this country remains a pitiful failure in practice. So it is a mistake to think that a mere act of accession occasions jubilation. Our history has proven this faith to be woefully misplaced. In fact, many of the UN Human Rights Committee’s unimplemented recommendations on making the legal system effective were detailed and painstaking charted by Special Rapportuers of the caliber of law professors Philip Alston and Manfred Novak from more than a decade ago. Many were also reflected in the report of the Lessons Learnt and Reconciliation Commission (LLRC).

Public cynicism in response to UN visits

Using the still pending cases into the horrific extra judicial killings of seventeen Tamil and Muslim aid workers in Mutur in August 2006 and five Tamil students in Trincomalee in January of that same year, the LLRC traced fault lines in respect of investigations, the detention process, prosecutions (including witness protection) and the judicial process. Many of the LLRC recommendations also remain unimplemented or as in the case of the so-called Victim and Witness Protection Authority, are cosmetically in force.

In fact, the public cynicism that greets the numerous visits of missions from the United Nations as well as elsewhere is manifest. The most jubilant appear to be the nationalists who use the visits to underscore their favorite point that Sri Lanka is ‘succumbing’ to international pressure. In fact, no one is succumbing to anything.

Rather, we tread our weary way without any perceptible change in the way that citizens are deprived of their due process rights, ranging from the tortured villager in the South who is mercilessly beaten by police officers to the ‘terrorist suspect’ in the North who is forced to sign a confession by his interrogators. Now that the Rajapaksa ‘excesses’ are no longer evidenced, we have returned to the old ‘normal, not a healthy pattern of behavior on any count.

Put on notice to show policy change

If these systemic failures have not been addressed up to now, are we not participating in a cynical game that betrays victims who are at the heart of state perpetrated outrages? And without the State being put on notice to show solid policy change, why this reinventing of the wheel with very little to show for it?

Surely these are questions that demand answers from the Government as well as those well-meaning observers who come to the shores of this country to ‘observe’ and depart.