Amendments to empower Human Rights Commission

By Manjula Fernando

The Human Rights Commission of Sri Lanka (HRC) has submitted proposals to bring amendments to the HRC Act No. 21 of 1996, fulfilling a long-standing need.

Human Rights Commissioner Dr. Prathiba Mahanamahewa spoke to the Sunday Observer last week on these proposals, the objectives of this move and the relevance of the amendments as well as the changing role played by the Commission in the post-terrorism reconciliation phase.

Q: The Human Rights Commission has proposed amendments to the HRC Act. What are the key proposals that have been made and the objective in proposing these amendments?

A: The objective of the Human Rights Commission of Sri Lanka is to strengthen, promote and protect human rights in the country. Once a recommendation by the HRC is given, it has to be implemented as soon as possible by the officials. Our amendments will empower the institution to enforce its recommendations and take defaulters to task.

This will be an encouragement for members of the public, whose rights have been violated. The aggrieved party may have been suffering for a long time, so redress cannot wait. The proposed amendments will cover victims whose rights have been violated or about to be violated. People will have more confidence in the HRC.

We have sought more powers in new areas, for instance, to issue interim injunctions, initiate national inquiries and additional powers when visiting detention centres. (The new proposals compel authorities to inform the HRC of any arrest of person forthwith [immediately] and the provision to do it in 48 hours is to be removed.)

Q: It has been reported that the HRC has submitted a five-point document to the Minister. Is this true?

A: There are more proposals than five.

One of the important amendments proposed is to the Section 11 (d). Section (d) covers the welfare of persons in detention.

In addition to the stipulated provisions, the proposed amendment calls for regular visits by HRC officials and the issuance of quarterly reports, giving recommendations to promote the welfare of detained persons. The amendment calls for specific reference to persons detained under the Prevention of Terrorism Act and regulations under the Public Security Ordinance.

Our aim is to complement the present law that ensures that detainees’ fundamental rights, guaranteed by the Constitution, are protected. Only the Human Rights Commission has the power to visit any detention centre with 24-hour notice.

The second important amendment is a new subsection in place of Section 11 (g). This will enable the Commission to initiate fact finding missions and national inquiries. This is something we have observed in HR laws in Australia, Afghanistan and New Zealand.

A national inquiry is an internal inquiry by the Commission covering the entire country. We make recommendations to the respective institutions. For example, in Australia, they have carried out similar inquiries on child rights and migrating people’s rights.

Sri Lanka is currently the Head of the Commonwealth, we are bound by the Commonwealth values. In the Universal Periodic Review, we have made 101 voluntary pledges; there are the Lessons Learnt and Reconciliation Commission recommendations and the National Human Rights Action Plan 2011-2016. To implement these recommendations, the HRC needs to be empowered.

The third and one of the most important changes is to Section 15 (8); when an official or an institution fails to carry out a recommendation by the HRC within the stipulated period, we have proposed powers for the Commission to submit a certificate to the Court of Appeal or Provisional High Court as appropriate, seeking a Court Order to implement the HRC recommendation.

At the moment, there is a time-consuming process when an HRC recommendation for redress is not implemented. We need to submit a full report to the President who has to table it in Parliament and take appropriate action.

But if this amendment is passed, our recommendation will be pursued by the Court and if the Court Order is not carried out, the respondents will be held for contempt of Court. Under the new subsection, even the aggrieved party can go to Courts with our recommendation and obtain a Court Order.

The forth one is the Subsection 15 (4). This will empower the HRC to make interim recommendations. When an inquiry is conducted by the HRC, any other inquiry by another body can be temporarily halted until the HRC inquiry is over. For example, when we were conducting an inquiry against a school principal, the Education Department also initiated an inquiry. The petitioner had to take part in both inquiries simultaneously. In the future, we can ease this burden on the victims.

The fifth proposed amendment is to the Section 20 (4), giving the Chairman and the Commission powers to issue a warrant to an official who is required before the inquiry. At the moment, we can only summon a person. Serving summons has little effect on someone who deliberately keeps away from the inquiry proceedings.

According to the existing Legislature, we have to inform the Supreme Court in case any person fails to honour HRC summons. But now, the Chairman can warrant defaulting officers. This will clear one of the major obstacles that the HRC faced in continuing Human Rights cases.

In addition, amendments have been proposed for Sections 11 (C), 15 (2), 15 (4) (a), 15 (7), 15 (9), 18 (1) (d) and Section 28 (1) among others in the Human Rights Commission Act.

This will give more teeth to the HRC in carrying out its mandate and take forceful action and ensure effective implementation of its recommendations in the future.

Q: People find it difficult to reach the HRC because it doesn’t have enough regional offices to serve the people in the peripheries. What can you say about this?

A: At the moment, we have 10 branches across the country, in Matara, Kalmunai, Batticaloa, Anuradhapura, Kandy, Badulla, Trincomalee, Jaffna, Vavuniya and Ampara and a mobile branch was opened recently in Puttalam.

When Navi Pillay visited the Human Rights Commission, she was very happy to learn that we had a regional office in Jaffna, that the people there need not come here to seek our help. She had got to know this during her visit to Jaffna and when she met us in Colombo, she appreciated our work there.Six new branches will be started next year in Moneragala, Ratnapura, Kurunegala, Mullaitivu and Kilinochchi. In Nuwara Eliya, we have a mobile branch which will be converted into a permanent one.

Q: Did the visits of the High Commissioner for Human Rights Navi Pillay and Commonwealth Secretary-General Kamalesh Sharma to the Human Rights Commission recently have any impact on the current amendments that have been proposed?

A: Our proposals did not come overnight. We had intense discussions spanning a period of over one year with civil society, clergy, several interested groups and community leaders.

These are not just our own proposals. The document is the result of intense and long deliberations. Law enforcement organisations in the country too had their share of inputs. All stakeholders have contributed to this outcome.

I should also add that High Commissioner Navi Pillay did not raise any questions over the Human Rights Commission Act. She appreciated our role, especially the role we play in furthering the National Languages Policy. She encouraged us to do more.

Secretary-General Sharma also visited and offered assistance to train our staff in England. The UNHRC and the Commonwealth Secretariat Human Rights Division are altogether different entities. Where the Commonwealth works as our partner, assisting Sri Lanka to overcome challenges, the UN works on a more political platform which is harmful to our national interests.

The Chairman, other officials and I visited the Marlborough House in London recently. We were given three days training on how other countries in post-conflict situations had rebound and achieved their reconciliation goals. Sierra Leon, Kenya, South Africa, and Northern Island. We cannot match our story to theirs and our reconciliation model is different, but there was much knowledge to gain by their experiences.

Commonwealth Human Rights officials were in Vavuniya with us for three days. We carried out reconciliation programs with civil society, clergy and State officials. Another such program is scheduled to be held shortly.

A very effective three-day program was held at the Kadirgamar Centre in Colombo recently with the participation of South Africa’s Truth and Reconciliation Commission members. South Africa’s Ambassador in Colombo also took part. Our scope has been broadened by the National Human Rights Action Plan 2011-2016. We have to train and create awareness among different sectors of stakeholders on Human Rights. It is a continuing process and part of our mandate.

We have begun training Provincial Council, Municipal Council and Pradeshiya Sabha members on their responsibility to protect Human Rights which I think is very important. We have taken up language training as well. This will complement the work by the National Languages and Social Integration Ministry.

Q: The HRC has a role to play in the forthcoming UN Human Rights Council session in Geneva, isn’t it?

A: No, we will not have a direct role to play, but if someone needs us to submit a report, we will be happy to do that. We play a role in preparing Sri Lanka’s Universal Periodic Report of the Human Rights Council.

Key amendments:

* Section 15 (8) - Powers to obtain Court orders to compel implementation of HRC recommendations
* Section 11 (g) - Initiate fact finding missions and national inquiries
* Section 15 (4) - Powers to freeze external inquiries to facilitate HRC investigations
* Section 20 (4) - New powers to issue warrants on officials to testify
* Facilitates more visits by HRC officials to detention centres

* Information on arrests to be conveyed to HRC immediately. The law provided for 48 hours, this is to be abolished.