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The UN Panel Is Presumptious — Human Rights Comm. Chief

By Raisa Wickrematunge

The UN Advisory Panel report has certainly caused its share of buzz. While opining that there could be some meat to the war crimes allegations, the report also claimed there was a lack of “comprehensive accountability.”

Former Chairman, Bribery Commission, Justice Ameer Ismail

In particular, the UN pointed at the Human Rights Commission which it said, “could also potentially contribute to advancing certain aspects of accountability, but the Panel has serious reservations.” It added that the Commission would need both political will and resourcefulness in following up on cases of missing or detained people.
Apart from that, the UN painted a less than rosy picture of institutions dealing with accountability in general. Though they would do in-depth fact finding, they claimed that many did not issue public reports, and recommendations made by the Commissions were rarely implemented.

The HRC’s Mandate

According to the Chairman, Human Rights Commission, Justice Priyantha Perera, the Commission arose out of an Act of Parliament: the Human Rights Commissions Act of 1996. “Any person who has had their human rights violated can make a complaint. The Commission will then hold an inquiry into the matter. If the complaint is established, the Commission will make a recommendation with regard to relief given,” Justice Perera said. In addition, provision is made for people to make a complaint for a violation of their fundamental rights under the Act. It is only the Supreme Court that is empowered to look into such complaints, Perera clarified. However the Commission would be able to make a recommendation in terms of action against the party about whom the allegation is made, if it was proved to be true.

The Bribery Commission logo

In November 2006, lawyer Justice Ananda Coomaraswamy was appointed as head of the Commission. Though his tenure officially ended by end 2009, he served a few more months, Perera said. Then in February this year, the President introduced the 18th Amendment into legislation, Perera explained. In accordance with the new legislation, a new Committee was formed, with Parliamentary approval, and Perera was appointed as the new Chairman.

Reaction

What is Justice Perera’s response to the comments made in the report? Perera said he had not read the report, as he was busy getting things in order within the Commission itself.
However, he said the comments that the UN made about the Commission were “presumptuous.”
“This Commission was just appointed in February. The UN panel is highly presumptuous in making these comments. We can’t solve all the problems that have existed for the past 30 years,” Justice Perera said.
He added that the Commission would do anything within the law to make sure justice was served with regard to missing and detained people. “We can’t be contravening the law, but this new Commission is committed to its work,” he said.
He added that the provisions in the Human Rights Commissions Act clearly established both the powers which could be exercised by the commission and the sanctions available. Despite this, he added that the Act “could be tightened further” to help those whose rights had been violated.
He also said that the Commission was still an impartial body. “I would not be involved in any institution where there was interference,” he said. He added that as he had experienced absolutely no interference of any kind during his tenure as Chairman, Public Services Commission, he presumed that this would continue in the Human Rights Commission as well. Justice Perera said that he believed the UN had indeed crossed the line, even though the current legislation set out in the Act could be improved upon.

Introducing The Bribery Commission
The Commission to Investigate Allegations of Bribery and Corruption was introduced in 1994. According to the  Commission’s website, the Commission investigates, prosecutes and prevents incidents of bribery, corruption and the accumulation of wealth above a person’s position. The 1954 Bribery Act mostly limits cases of bribery to employees of the state, ministers and members of parliament, to name a few. The last Bribery Commission Chairman, Justice Ameer Ismail was appointed on March 25, 2005. His purview officially ended on March 28, 2010. Around this time (in February) the 18th Amendment was drafted into legislation.
The last raid according to the website occurred on March 3, 2010, when an interpreter in the Magistrates Court, Horana was arrested for demanding and accepting a bribe of Rs. 3000 in order to facilitate a brief on a closed case.
The Secretary of the Bribery Commission told The Sunday Leader that this Commission is not currently functioning, and directed us to the Director General, who was on holiday when The Sunday Leader called for further clarification.

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The UN Panel And Lankan  Democracy

By Maryam Azwer and Gazala Anver

Prof. Jayadeva Uyangoda and Dr. Paikiasothy Saravanamuttu

Among the issues raised in the UN Panel report on alleged war crimes was that “…domestic institutions that could play a key role in achieving accountability also demonstrate serious weaknesses.”
Over the years, there have been many calls for the proper establishment of such domestic institutions as an independent Elections Commission (EC), and the re-establishment of an independent National Police Commission (NPC). Both commissions, it has been argued, are crucial for a functioning democracy.
Executive Director, Center for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu, said that the absence of these two commissions poses a threat because: “The executive (now) does whatever it wants.” For the democratic mechanism to fall into place, he pointed out, independent commissions are a must.
According to Dr. Saravanamuttu, the NPC which functioned until of late, did up to a certain point, help prevent human rights violations. However he also said that “it wasn’t entirely successful, considering that human rights violations continued to take place.”
As for the Elections Commission, which was never established despite provisions being made in the 17th Amendment to the Constitution, he said that the whole point of an Independent Elections Commission would be to provide independence from political interference, and prevent abuse of state resources.
Political analyst, Dr. Jayadeva Uyangoda, explains that “one of the democratic demands of this country has been de-politicisation of the public service, or to make certain public services independent of political control.”
Sri Lanka, he says, needs a new process of democratisation. “What we have is a parliamentary democracy. The problem is that democracy has not gone deep into institutional culture in Sri Lanka. Sri Lanka has a very weak liberal democracy. In that context, these commissions have become important.”
With the current system, he points out, there is a serious imbalance among the executive, legislature and judiciary. “We require a stronger balance between the three. One of the problems is that the executive emerges stronger than the legislature and judiciary.”
One of the main impediments to this balance could be that these commissions are not functional. The reestablishment of the NPC, and the establishment of the independent EC, are therefore arguably much needed for an active democracy.

The National Police Commission

Ranjith Abeysuriya

The National Police Commission was established by the 17th Amendment to the Constitution, which aimed to depoliticise important national institutions, and was first appointed at the end of 2002.
As per its mandate, the National Police Commission had powers:
over the appointments, promotions, dismissals, disciplinary control and transfers of all police officers, except the Inspector General of Police.
to receive, investigate and redress public complaints against any police officer or the police service.
to formulate schemes of recruitment and training and codes of conduct and standards to be followed in making promotion and transfers.
The NPC ceased to function since its last term ended over a year ago. This came as a result of the Constitutional Council, which appoints members to the commissions, itself being nonfunctional.
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The Elections Commission

Mahinda Deshapriya

Under the 17th Amendment to the Constitution, the Elections Commission was established to “conduct free and fair elections and referanda.” Although the commission was never appointed, as stated in the constitution, the powers of the commission were vested with the Elections Commissioner. Newly appointed Elections Commissioner, Mahinda Deshapriya, speaking to The Sunday Leader said that the EC was never established because: “members were never appointed to the EC.”
The functions of the EC, which the Elections Commissioner currently carries out include:
preparing the electoral register
conducting the presidential, parliamentary, provincial council and local authority and referendum elections
The body that currently performs the above mentioned functions as well as the administrative duties is the Elections Department.
Responding to allegations that political interference has in the past prevented the process of a free and fair election, he said that “there has so far been no problem carrying out functions.”
“The Elections Department has been functioning independently with no political influence,” he said. He also added that the only problem at present is working within the limits of the power given to the Elections Commissioner. “That is the difference between India and Sri Lanka,” he said.
“We are completely independent,” he said.

The LLRC panel

The Lessons Learnt and Reconciliation Commission (LLRC) remains non committal about references made to it being “deeply flawed” in the report by the panel of experts appointed by UN Secretary-General Ban Ki-moon on Sri Lanka.
The LLRC has maintained its silence while commencing work on the first draft of its final report expected to be handed over to President Mahinda Rajapaksa by May 15.
The UN Secretary General’s panel has stated that the LLRC is “deeply flawed, does not meet international standards for an effective accountability mechanism and, therefore, does not and cannot satisfy the joint commitment of the President of Sri Lanka and the Secretary-General to an accountability process.”
The government appointed the LLRC last May likening the Commission to South Africa’s Truth and Reconciliation Commission. The LLRC was assigned the task of inquiring into the final years of the war between 2002 when the ceasefire agreement was signed and 2009 when the war concluded.
The Commission commenced its sessions in August last year amidst doubts raised by the international community on the Commission’s credibility.
Till the LLRC concluded its public sessions last month, it held sessions in Colombo and in many districts. Sessions were held in the districts of Jaffna, Mullaitivu, Mannar, Trincomalee, Ampara, Batticaloa, Vavuniya, Anuradhapura, Moneragala, Galle and Matara.
According to Ban Ki-moon’s panel, although the government had appointed the LLRC to address the issues faced during the years of the conflict and reconciliation, it fails to satisfy key international standards of independence and impartiality.
The report states, “The Government has established the Lessons Learnt and Reconciliation Commission as the cornerstone of its policy to address the past, from the ceasefire agreement in 2002 to the end of the conflict in May 2009. The LLRC represents a potentially useful opportunity to begin a national dialogue on Sri Lanka’s conflict; the need for such a dialogue is illustrated by the large numbers of people, particularly victims, who have come forward on their own initiative and brought to speak with the Commission.
“Nonetheless, the LLRC fails to satisfy key international standards of independence and impartiality, as it is compromised by its composition and deep-seated conflicts of interest of some of its members.”
The panel has explained that the mandate of the LLRC, as well as its work and methodology, are not tailored to investigating allegations of serious violations of international humanitarian and human rights law, or to examining the root causes of the decades-long ethnic conflict.
“Instead these focus strongly on the wide notion of political responsibility mentioned above, which forms part of the flawed and partial concept of accountability put forth by the Government,” it states.
The panel charges that the work of the LLRC to date demonstrates that it has not conducted genuine truth-seeking about what happened in the final stages of the armed conflict, not sought to investigate systematically and impartially the allegations of serious violations on both sides of the war, not employed an approach that treats victims with full respect for their dignity and their suffering, and not provided the necessary protection for witnesses, even in circumstances of actual personal risk.
Nevertheless media spokesperson for the LLRC, Lakshman Wickremasinghe states the Commission is satisfied with the manner in which it has conducted its task in a transparent manner through its methodology.
“The Commission sessions were carried out in a transparent manner with the media invited to cover almost every public session in Colombo and the outstations,” he said.
However, the media in one instance was not given access to the sessions when the LLRC visited a detention camp for former LTTE cadres in Boosa in the Galle District.
When inquired as to the assurance of transparency when the media was left out of this particular session, Wickremasinghe observed that access to the Boosa high security camp was only to members of the Commission and a few key officials.
“The LLRC did not invite the media to cover the particular session since access to the camp was not open to outside members other than the Commissioners and the detainees had requested for confidentiality. Their wishes had to be respected,” he said, adding that all other sessions were open to the media as well as the public.
He said that all Sri Lankan citizens were invited to make their submissions to the LLRC either in writing or orally during its public sessions in Colombo or in any other part of the country.
“People were also given the option of submitting their testimonies via video,” he said.
Wickremasinghe observed that a cross section of people had come forward to testify before the Commission. “The LLRC focused a lot on holding sessions in areas in the North and East.”
According to the Spokesperson, the Commission has received over 5,000 written submissions from the North and East. “The Commission received about 470 written submissions during sessions in Ampara and Moneragala.”
Another issue raised by the UN Secretary-General’s panel is the protection provided to witnesses who have testified before the LLRC.
Wickremasinghe pointed out that the LLRC was mindful of its witness’ security. “That is why they were given the option of making written submissions personally or even by post to safeguard their identity. The witnesses also had the option of denying their submissions being videoed.”
He said the Commission has received a large number of written submissions.  The LLRC is currently preparing its final report in line with its mandate.

Members Of The LLRC
Former Attorney General Chitta Ranjan de Silva (Chairman)
President’s Counsel Dr. Amrith Rohan Perera
Prof. Mohamed Thahir
Prof. Karunaratne Hangawatte of the School of Criminal Justice at the University of Nevada, Las Vegas (UNLV)
Attorneys-at-Law Mohamed Jiffry
Chandirapal Chanmugam
H.M.G. Siripala Palihakkara
Mrs. Manohari Ramanathan
Maxwell Parakrama Paranagama
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The Mandate Of The LLRC
The commissioners are to inquire and report on the following:
1.    The facts and circumstances which led to the failure of the ceasefire agreement operationalised on February 21, 2002 and the sequence of events that followed thereafter up to May 19, 2009
2.    Whether any person, group, or institution directly or indirectly bears responsibility in this regard
3.    The lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence
4.    The methodology whereby restitution to any person affected by those events or their dependents or to heirs, can be effected
5.     The institutional administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of this Warrant.

The introduction of the 18th Amendment to the Constitution in place of the 17th Amendment has legitimised impunity by the government and resulted in the politicising of the public service in the country.
The passing of the 17th Amendment to the Constitution in 2001 was considered a significant step towards establishing a culture of good governance and accountability.
However, the failure of the political leadership in the country to implement the 17th Amendment and the media to keep a close watch on the issue resulted in the piece of legislation being replaced by another.
Constitutional lawyer and former Executive Director, Transparency International Sri Lanka, Chrishantha Weliamuna says that albeit a few own deficiencies, the 17th Amendment should have been implemented by the political leadership to prevent the deterioration of the rule of law in the country.
“There is no political commitment to make the public and the police service independent. Politicians have controlled the public sector since 1972,” he said.
According to Weliamuna, although the politicians agreed to the implementation of the 17th Amendment and the Constitutional Council, the fear of losing control of the public service and other key areas resulted in the political leadership suppressing the implementation of the amendment.
The Constitutional Council was established in order to recommend appropriate persons to the independent commissions specified in the 17th Amendment and help achieve good governance by recognising the principles of equity, transparency, and the elimination of unfairness and invidious discrimination and arbitrariness. The political suppression behind the implementation of the 17th Amendment was clearly witnessed when President Mahinda Rajapaksa failed to appoint the Constitutional Council.
“However, it has not only been President Rajapaksa, but even former President Chandrika Kumaratunge also failed to fully implement the 17th Amendment by not allowing the appointment of the independent elections commission,” Weliamuna said, adding that the erosion of the piece of legislation commenced from thereon. He explained that the 17th Amendment could have made appointments to the public service and police free of political influence. “Parliament scrutiny on high posts is not efficient and scrutiny on appointments was there only with the 17th Amendment,” he said. Weliamuna noted that the post-17th Amendment period has seen the deterioration of the rule of law.
The need for the implementation of the 17th Amendment has been a subject widely spoken of since the government’s move to introduce the 18th Amendment to the Constitution. “The 18th Amendment has legitimised government impunity and has politicised the public service while creating a back door opening to remove the clause preventing the President from contesting for office only for two terms,” Weliamuna said.
Meanwhile, UPFA Parliamentarian Prof. Rajiva Wijesinha in one of his articles on the 17th Amendment to the Constitution has pointed to the need to introduce an amendment to it and stated that one of the anomalies in it is the great distance at which the Constitutional Council, which is supposed to dictate decisions to the elected President, derives its authority.
He has stated that the manner in which it is constituted is another example of unsystematic legislation. The Council consists of 10 members of whom three are ex officio, namely the Speaker, the Prime Minister and the Leader of the Opposition. These last two recommend five others for nomination by the President.
“In making these recommendations, the two major figures in Parliament must consult leaders of political parties and independent groups in Parliament, and three of the five should be nominated to represent ‘minority interests,’ after consultation of Members of Parliament (not leaders of parties in this case) belonging to ‘the respective minority communities,’” Wijesinha has written. Of the remaining two members of the Constitutional Council, one is nominated by the President, which is fairly simple. The other is nominated for appointment by the President ‘upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs (sic).’
Nothing is said about what should happen if there is no agreement with regard to this last – which is what held up appointments to the Constitutional Council last time round – or if the Prime Minister and the Leader of the Opposition fail to agree, or if other parties claim they were not properly consulted. There is no clarity about what is meant by ‘minority communities’ nor which ones are to be privileged through this amendment.
“In short, the 17th Amendment was hastily cobbled together by legislators who simply did not bother about consistency or precedents elsewhere. It is singularly inappropriate for the Executive Presidential system we have, and as was shown by President Kumaratunga, nothing can be done if the President is not inclined to accept the recommendations of the Council,” Wijesinha observes. Former Chief Justice Sarath N. Silva has also commented on the 17th Amendment. Silva last week said, that had the 17th Amendment been implemented appropriately the current situation faced by the country would never have arisen.
“Even the European Union called for the implementation of the 17th Amendment to make available the GSP + to Sri Lanka. The present Chief Justice too says it would have been better if the 17th Amendment had been implemented. However, he paved the way to bring in the 18th Amendment,” Silva said.

Salient Points Of The 17th Amendment
The 17th Amendment was presented to Parliament in September 2001 and enacted in October 2001.
The Constitutional Council however was constituted only in March 2002.
The Council consisted of the Prime Minister, Speaker, Leader of the Opposition, a person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition and one person nominated upon agreement by the majority of the members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong and appointed by the President.
One of the prime objectives in creating the Constitutional Council was to free the Commissions created by the 17th Amendment from political interference.
Appointments to Public Service Commission (PSC), the Judicial Service Commission (JSC), National Police Commission (NPC), Commission to Investigate Allegations of Bribery and Corruption, Human Rights Commission (HRC) were made with the recommendation of the Constitutional Council.
An independent Elections Commission was also to be appointed by the Constitutional Council.
A significant feature of the 17th Amendment is the creation of the Administrative Appeals Tribunal with powers to hear appeals from decisions of the PSC and the Police Commission.