People-friendly: Human Rights

by Manjula Fernando

Leading human rights activist and legal academic Dr. Deepika Udagama as the new Chair of the Human Rights Commission says their objective is for the Commission to be proactive and more people- friendly to bring out the hidden human rights issues of the marginalized and the grief stricken. She says their role will be different and that it will be devoid of political interference. “But whatever it is, you have to work according to your conscience. If it comes to a position where one cannot work, then one has to leave. The option of resignation is always there,”she said

Q:Have you left the Peradeniya University to take up this post?

No I haven’t left the University. I am here for a three year period.

Q: You were a former Commissioner of the Human Rights Commission?

Yes from 2003 to 2006 when Ms.Radhika Coomaraswamy was the Chairperson.

Q: So, this is not at all a new place to you?

No it is not. When the Human Rights Act was being discussed in 1995- 1996, when Lakshman Kadirgamar was the Minister of Foreign Affairs, we as academics and as human rights activists played a role going through the draft act, and commenting on it and giving recommendations. I remember the pivotal role played by late Dr.Neelan Thiruchelvam.

We worked with him and through university and human rights organisations to improve the law. Some of our recommendations not all were incorporated in the Act. Nevertheless it was a major breakthrough to establish a statutory body. In 1997, the first Human Rights Commission was appointed. We did work with various commissions from time to time on various issues.

Q: Today you have been called on to head that statutory body, what is on top of your priority list?

I wish to re-orient the Commission to function independently and shift the focus on types of complaints. One may think that it is just an objective, it is not. It is a whole new way of functioning. It affects the working spirit and institutional psyche. Then we can work on human rights issues in a much stronger manner.

While recognising the importance of entertaining group and individual complaints, we need to focus on real Human Rights issues.

The new commissioners of the HRC, had the first meeting on October 30. Thereafter, we had several rounds of meetings, with the staff and 10 regional offices. We also had consultation with civil society in Colombo. We plan visiting our regional offices very soon and have consultative sessions with regional civil society. Some of our regional offices are functioning quite well.

Q: Do you think the day to day complaints to HRC reflect the real human rights picture of Sri Lanka?

When we peruse past records of the Commission from 1997, during the north east war and when the Prevention of Terrorism Act (PTA) was in operation, we counted a large numbers of complaints about personal liberty, arbitrary detention, prolonged detention, enforced disappearances and torture.

But during the Cease Fire Agreement and after May 2009, a dramatic plummeting of numbers of such complaints were observed. So we can safely say that there is a co-relationship between operations of the PTA as opposed to normal law.

However, we have also observed a phenomenon where, even during the war years, the HRC receives a large number of complaints over violations of fundamental rights especially in the work place. We also get another large block of complaints on school admissions to grade one.

By the pattern of complaints we can really see, that the human rights issues the people of Sri Lanka face, on a day to day basis are not really reflected in the complaints to the HRC.

Q: So the Human Rights Commission will be completely over hauled under your chairmanship ?

Yes, we also want to act on “suo moto’’ powers because there are burning issues that never reach us due to various reasons. We don’t have to wait for complaints to initiate inquiries.

During the police action on HNDA students in Ward place recently, for the first time the HRC initiated action. There is an issue of crowd controlling in the country.

Q: Do you think that you have the capacity and the staff strength to handle all the cases that you mentioned?

If you consider staff strength, then we will have to ignore a lot of things, because we don’t have the sufficient staff strength.

We have to work with partners and that will be civil society, research organisations, expert bodies, social workers, community organisations. That is a creative way to function rather than rely on large numbers of officials which we will never have.

The answer will be in setting priorities and planning.

Q: What role would you be playing in the transitional justice front?

Transitional justice and reconciliation process is a priority area. We are of the opinion that those processes are very much based on human rights law.

Q: There is an ongoing constitution making process?

We believe that it is such an important moment in a country’s history - the making of a Constitution. Sri Lanka has taken constitution- making very lightly in the past. Since independence, we have had three constitutions, including two Republican.

But the manner in which the Constitutions were made, particularly the republican constitutions, are highly questionable. When there was every opportunity and need to consult the people, and create inclusive and democratic constitutions, that did not happen.

Now that we are thinking of a third Republican Constitution, we have to play a very pivotal role.

We want to ensure that these two processes are participatory. The irony is that both Republican Constitutions were drafted with very little consultation.

One can safely say the past two Constitutions were violent Constitutions. They created problems, which caused divisions among groups of citizens, heightened suspicion, created this necessity to contest each other and so on whereas a good constitution brings communities together, it gives assuarances to people, that you are looked after,

I think we have a big role to play in this process, providing ideas and standards.

Q: There is an expert committee formed on the constitutional remake. Are you also part of that committee?

No we don’t want to be part of any committee. Even on the reconciliation, we don’t want to be part of the process, we can be observers but as an oversight body we must maintain our independence. We are empowered to provide advice.In addition to those two major issues, over the next few years, we need to prioritise legislative reforms, because there are many pieces of legislation causing a lot of problems.

Q: In the aftermath of the Paris terror attack and London Mayor’s speech calling for tougher laws to tackle terrorism, should we rethink repealing the PTA. And you yourself said the war and the PTA together contributed to violations of human rights. The war is not there anymore and the protection of citizens is a vital factor?

What we need is a balance. Of course security has to be provided to the people. We need to balance public security needs with the rights needs.

All the Commissioners opine the PTA was a failure. All our Commissioners are very experienced, and they have been monitoring human rights in various capacity as legal practitioners and as human rights advocates.

In fact we believed that PTA exacerbated and gave reasons for more and more youngsters to join these groups, that engaged in a great degree of violence and that is because of a sense of grievance.

Under PTA there can be extended periods of detention, possibility of bail is minimal and confessions are admissible which encourages torture. Long periods of detention also encourages enforced disappearances. When you see that sort of draconian measures, when you have a political cause you don’t feel like giving up in fear, but you become more militant.

But what is needed to look at why terrorism happens, in the context of Sri Lanka, we really have to look at the root causes and address the grievances.

What you need are good social policies at ground level to redress grievances of the people, if there are claims of discrimination, to look into those and deal with the violence in a proportionate manner.

As far as the PTA is concerned, what we are asking is for a replacement of the PTA, with security laws that are human rights friendly.

Sri Lanka has a sad history of being governed under emergency laws for 40 years. Emergency becoming the normal law has impacted the collective institutional and political psyche, the police for example has got used to extraordinary powers.

We also need to work on the Right to Information Bill. The Human Rights Act requires amendments.

Q : But under the present Act you can only make recommendations. They are not legally binding, will you be seeking additional provisions to give more teeth to the Commission?

Yes they are not legally binding. There is debate as to whether we should get our recommendations enforced by court order or if we could ask for the binding effect. We could seek Pparliament’s intervention to do so but the enforcement should be voluntary.

If recommendations are not followed because they are not legally binding, that is a terrible reflection on the nature of our officialdom and their own view of the rule of law. We can get the law tightened, but it will not resolve the underlying problem.

We have a problem here of quite a large percentage of our recommendations are not being, enforced. I am sad to say a group of persons whom we respect, principals belong to that category, therefore it’s very telling.

Q: You said the Human Rights Commission is now independent, but the appointment of Commissioners are made by the President and the possibility is always there, to remove the Commissioners if they act too independently ?

I would never have accepted this position if the 19th Amendment was not there. When I became a Commissioner earlier, it was under the 17th Aamendment. The Constitutional Council recommended our names and the President made the appointments. I would tell you with absolute authority that during those three years from 2003 to 2006, there were no political interferences.

You have to work according to your conscious. If it comes to a position where one cannot work, then one has to leave. The option of resignation is always there. I hope it doesn’t come to that and I am quite confident that everyone understands that these independent commissions were established because of people s demands. We have to remember historic role played by Ven.Maduluwawe Sobhitha thera in getting the 19th Amendment passed and giving leadership to people’s voices and establishing the independent Commissions. We are conscious of public expectations.

Q:Will you be playing a lead role in the domestic mechanism that has been proposed by the UN Human Rights Council resolution ?

When I spoke about our priorities I spoke about transitional justice. It shouldn’t be called a Geneva process. In the first place, Sri Lanka should have had a domestic mechanism to look into allegations and to encourage reconciliation. Limiting it to the Geneva process is a disservice done to this country.

We have taken a decision to play a major role here, mainly advising the government on the transitional justice process.

We are in the process of studying the Paranagama report and others. We will meet the relevant authorities in the near future. The specifics we have to work out in the coming days.

Q: There are so many individual reports submitted against Sri Lanka’s Human Rights record. How do you propose to address these issues ?

It would have served the country well when this sort of allegations were raised, if there was an independent and genuine process set up within the country to inquire into those allegations. I think international law does not expect anything more. When we discuss human rights violations, we cannot limit ourselves just to domestic law or the constitution which is the supreme law, because as an independent sovereign nation, we have decided to undertake international human rights obligations, just like how we have under taken trade or environmental obligations.

We have ratified quite an array of international conventions without reservation and that is quite strong. If those are properly implemented domestically, we would have been on a strong wicket.

The motivation for protecting human rights in the country should not be to ward off, international scrutiny but to do right by your people. And no body who govern this country can ever forget that we have both national obligations and international legal obligations and our national law must incorporate international standards.

When we speak of various reports, if Sri Lanka had genuine, independent processes to look into the allegations, I don’t think there will be this level of international scrutiny. But if a country fails and is persistent in its failures then internationally the scrutiny is going to mount.

Q: The former government insisted that a section of the international community had been subjective and manipulative in applying Human Rights on Sri Lanka ?

Like any other human activity, there are politics here as well. The UN is an organization of member states. But the point is, we don’t have to be a subject of those politics, if everything is fine in the country.

The obligation of any government is to ensure that peoples’ rights are protected. We have every ingredient in this country to have an inclusive and democratic society. But somehow along the way we have lost it. A very telling thing is that a greater part of our violence began under the republican governments. We have to take it seriously. If we create that sort of a society no one is going to turn on their search lights on us.

Q: Sri Lanka has been under the spell of a very violent war for nearly 30 years. People’s minds and perceptions have been totally tweaked.

That is where leadership is needed towards national harmony. Violence has been such a part of our life. We have had two insurrections, the state was identified as a violent entity.

What we need to do is, through laws, structures, and social measures, create a much more gentler and decent society. That should be our solid goal.

Q: Do you find this job satisfying?

I am associated with the current team of Commissioners, but there is a huge responsibility. We will do our best in the next three years. And we hope we can leave an important legacy, one being proactive and ‘pro-people’. We need the support of all partners who work with us.