5 April 2018 12:00 am Views - 9169
Excerpts:
Q We speak of reconciliation in the post-war context, but now there has been a rise in communal violence. What is the reason behind this?
I think the reason for the rise or prevalence of religious or communal violence is the failure and inability to address existing intolerance and the lack of respect for diversity and pluralism within society, i.e. the intolerance of difference. In the post-war context it is also important to address the root causes of the conflict. So issues of inequality, discrimination and marginalization have to be dealt with. During the month of May in 2017 the HRCSL wrote to his Excellency the President and we pointed to the rise in religious intolerance and attacks on certain religious groups and called for action. In particular, we called for the perpetrators to be arrested and brought to justice. When you don’t address issues of impunity those who perpetrate such acts of violence will be emboldened and think that they can continue to commit such offences and get away with it.The failure to address impunity erodes respect for the rule of law. The failure to address impunity in cases of religious or communal violence also creates the belief that intolerance is acceptable and that inciting religious or communal violence is acceptable which leads to the erosion of the social fabric. Religious or communal hatred and violence should not become normalized; we should be angered and outraged by them. But outrage alone is not enough. We need action. Therefore, you have to take a multipronged approach to deal with issues of communal, ethnic or religious intolerance or violence.
Q After the letter to the President in May last year was action taken against the perpetrators?
We have found that adequate action has not been taken to address these issues.
Q What are the findings of HRC’s investigations when it comes to the recent incidents of communal violence?
The investigations are still continuing and our Kandy office is inquiring into the matter and gathering information. Hence, it isn’t possible to state the outcome at the moment, but as we said in our letters to the President and the Prime Minister, according to preliminary investigations carried out by the Commission, the violence appears to have been instigated by external elements in an organized manner causing communal division, death and destruction of property. The Commission takes this issue very seriously.
Q Do you think the Government is taking adequate action to identify who is responsible for the recent incidents of communal violence and make them accountable?
We have noted that many arrests have been made following these incidents, but we have to wait and see what action would be taken following that. We stated in our letters that not only those who participate in such violence, but also those who instigate violence and provide organizational strength have to be made accountable. Hence, we have to wait and see if that would be the case and whether there are prosecutions.
Q Many have pointed fingers at law enforcement authorities for being inefficient. Has the HRC addressed this issue?
These are all issues that we’ll be looking into during our investigation into the violence. We hope to have it completed soon because it’s an issue of national importance.
Q In the aftermath of the violence we saw efforts of solidarity being made by the Sinhalese and the Muslim communities. What should be done to prevent a recurrence of such violence?
Many things can be done. We need to acknowledge that intolerance and prejudice exist within our societies and they need to be addressed. Where we find communal harmony and good inter-ethnic relations we need to foster them. At the local level or the community level where there was positive action or where the communities banded together you found that the links between the different communities was quite strong, which led them to come together during a crisis. That definitely needs to be fostered and supported. And most importantly in order to prevent a recurrence we need to have accountability. It means you need to stem impunity and ensure there is respect for the rule of law. That is a key part of preventing recurrence.
Q Spreading hatred and racism on social media is a longstanding issue. What existing laws can be used to bring those who spread racism and hatred on social media before justice?
Right now we have the International Covenant on Civil and Political Rights (ICCPR) Act, which applies to incitement of religious and racial violence. But where social media is concerned, I think it is also something that we need to understand better. We need research and dialogue on the issue and we need to consult experts. I think there is also a fear about social media, which sometimes happens with new technology, and it is thought that by clamping down on the medium you can stop certain acts. But social media is only a tool that is used to incite hatred or violence, it is not the cause of hatred or violence. While we think of how to manage the tool we must also address the root causes. Our policy and decision making must be evidenced based and data driven. We must make informed decisions based on evidence. As the HRC said in its letter to the Chairman of the TRC it is also important to ensure that a balance is struck and it does not impinge upon freedom of expression and the right to information and that it adheres to the Constitution and to our international human rights obligations.
Q What kind of a social media policy can Sri Lanka adopt?
At present, a particular policy or framework cannot be recommended because any recommendation made has to be informed and supported by data or evidence. Currently, there is inadequate awareness of the manner in which social media platforms function and ways in which they can be accessed- for instance, as we know, even if you ban certain apps or social media platforms, you could use VPN- proxy servers- to access these apps or sites. Hence, it is important to obtain the advice of experts. This is an area we really need to consider, learn and research more about and ensure that any policy is evidenced based and data driven. I’ve talked to a few experts and what I have learned is that I need to learn more. For example, I have learned that it is possible without impinging on anyone’s right to privacy to map and to even predict violence that is about to unfold, based on the data available in the public domain. You can track who is saying what, how consistently they’re saying it etc. Hence, it is possible to have some sort of an early warning system. We must however always ensure that we take considered and well-informed decisions. Most importantly, as I said social media is just a tool. We must not get lost in talking about the tool and forget about the core issues and problems, and the root causes of this violence.
Q In terms of transitional justice, the Government has been lagging behind the full implementation of the UN resolution. What are the implications of this delay?
Where transitional justice mechanisms are concerned the Commission has expressed its disappointment about the delays in establishing them. We are however pleased that the Office of Missing Persons has been established. In any context, the failure to address the grievances, loss and pain of and violations suffered by persons, would have an adverse impact on not only those affected, but on the society as a whole and on inter-community relations in particular when it concerns different ethnic/religious groups.
Q The Government has decided to establish a reparation office. What is the purpose of a reparation office?
I can’t say anything specific about the Government’s proposed plans because the Commission is not aware of them. In Sri Lanka, we often equate compensation with reparation, whereas compensation is a part of reparation. Reparation has many elements, namely, restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. So it’s not only about providing redress for a harm suffered, i.e. compensation for a destroyed house, but also recognizing the right to reparation and recognizing victims as equal citizens. Reparation programmes can include material, symbolic, individual and collective measures etc. So the purpose particularly in post-war countries is to assist people who have been affected by the war to rebuild their lives and return to a position in which they were before they experienced the violence, violations etc. In establishing a reparations programme it’s important to do so in a consultative manner with the participation of civil society and of affected persons.
Q Is a new legislation required for the Office on Missing Persons (OMP)?
We currently have an institution called the Rehabilitation of Persons, Properties and Industries Authority (REPPIA) that has been providing compensation to people; including those affected by the armed conflict. But its remit is rather narrow and it doesn’t adopt a holistic view of reparation. Hence, in order to formulate a holistic reparations programme that adopts a broad definition of reparation in line with international standards you would need to have a new legislation.
Q The OMP is operationalized now with the appointment of its members. How would the HRC assist the OMP?
Over the years the HRC has received a large number of complaints from families of the disappeared. We will liaise with the OMP to share information that we have with it and also provide any sort of assistance that it requires.
Q A team of legal experts from Sri Lanka is to challenge the procedure adopted by the UNHRC to pass the resolution on Sri Lanka. What are the views of the HRC in relation to this?
This doesn’t particularly fall within our mandate. Our mandate applies only within the borders of Sri Lanka; we are also mandated to ensure that Sri Lanka adheres to its international legal obligations.
Q Isn’t this UN resolution an international legal obligation as well?
Yes it is. But Sri Lankan citizens also have the right to engage in UN procedures and its mechanisms. As far as we are concerned we look into allegations of violations against the State within the borders of Sri Lanka and we are also mandated to ensure that Sri Lanka adheres to its international legal obligations. Any resolution that is accepted or conventions that are ratified by Sri Lanka are within our mandate. But the intervention you mentioned is about citizens who are engaging directly with the UN system and they have every right to do so.
Q Activists have urged for the repeal of the Prevention of Terrorism Act (PTA) and in fact there were reports on a proposed counter terrorism Act. With regard to the repeal of the PTA what is the current situation?
As you know the Commission has repeatedly called for the repeal of the PTA as it allows for prolonged detention without judicial review and the admissibility of confessions made to a police officer of a certain rank etc. We have reiterated numerous times that any new legislation should be in line with international human rights standards and Sri Lanka’s international obligations. The Commission isn’t aware of the current status of the process to draft new law.
Q It was reported that the HRC hasn’t received a reply to an RTI request made requesting a copy of the report on the Welikada prison riots within the time stipulated in the law. What do you think of the efficiency in which public authorities respond to RTI requests?
The RTI legislation is a very positive thing and it seems it has caught the public’s imagination because people are using the law to obtain information and also to bring about greater transparency. What we find is that the State structures are still unprepared to implement it effectively. This is due to many reasons. I think there is a lack of awareness of the law and the obligations it places on public officials and the lack of human resources in particular to implement it efficiently and effectively within the legally stipulated timeline. In Sri Lanka we aren’t particularly partial to proactive disclosure and I think there is still a reluctance to share information freely. We still see that reluctance even though we have the RTI Law, which points to the fact that legislation alone is inadequate to bring about social change. A change of work culture and mindset is also required. Proactive disclosure means to disclose everything possible unless you cannot for very serious reasons. If you look at the HRC, we have listed information we can share and that which we can’t disclose. However, even with regard to information we can’t disclose, we have stated that if we believe it is in the public interest then we will disclose such information. We are still unprepared and ill equipped to implement the law, which is a very positive law. It can be a tool, a weapon to bring about greater transparency, greater accountability and combat corruption.
Q In your view is the HRC truly independent?
Absolutely. We have not had any political interference from anyone telling us what to do or what not to do, or try to influence our decisions in certain cases etc. Therefore, we can say we believe that we are truly independent.
Q Do you think that the HRC should be vested with more power so that its decisions are binding?
That’s a question that is asked from us very regularly. We’ve discussed this within the Commission and we don’t believe that to be the case for many reasons. Firstly, if we are to issue enforceable orders we would become a quasi-judicial body. The whole point of establishing the HRC was to establish an alternative mechanism for people to seek redress because court procedures are expensive, time consuming etc. If we judicialize the HRC processes as well, then we make it more difficult for the complainants. Secondly, in Sri Lanka there have been instances when judicial orders, which are binding, are sometimes not adhered to. Giving an order does not guarantee that it will be implemented. It all comes back to respecting the rule of law, and how the citizens and public servants feel about the HRC and its role in the society.
Globally, in most countries human rights commissions don’t have the power to issue enforceable orders. They issue recommendations. In many countries these recommendations are taken very seriously and implemented. Therefore, the question we need to ask ourselves is why is it not happening in our country? So the problem lies with us. Would the HRC issuing an order be taken as a solution? We don’t think so because as I stated above, regrettably, there have been instances when even court orders aren’t adhered to. So how do we solve this problem? It’s about lack of respect for the rule of law and lack of respect for the mandate and the role of the HRC. We believe that currently we do have quite adequate powers because we can summon people and documents and we can visit places of detention unannounced. At the end of the day it’s not about the Commission per se, it’s about how the community and State structures react and engage in our work. Does a penalty have to always exist in order for people to respect a finding or a recommendation of the Commission? If so what does it say about our society?
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