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The state is obligated to investigate all crimes, whether enacted by organized criminal gangs, terrorists or state agencies themselves. This requires a competent and impartial criminal investigation branch within the policing system, which has not been corrupted or impaired by political interference.
There is consensus within Sri Lanka that the capacity of the police to investigate crimes has been gravely diminished due to political interference over several years, and that their internal capacity for investigations has become extremely limited. When it comes to organized crime, terrorist acts and extrajudicial acts by the military and the police, the police have shown no capacity for effective investigation in recent years.
This inability to ensure effective criminal investigation is a fundamental failure of the state in ensuring security to its people. This situation needs to be cured immediately. A U.N. human rights monitoring body could assist the revival of this system; without such assistance there is no predictable way for the system to be corrected.
United Nations High Commissioner for Human Rights Louise Arbour reiterated her call for human rights monitoring in her statement to the Human Rights Council on Dec. 10.
"I was very pleased to visit Sri Lanka from 9-12 October at the invitation of President Rajapakse and am grateful for the broad access I was given to government representatives, political parties and members of civil society, including the troubled northern region of Jaffna," she said.
"During my visit, I paid special attention to the issue of abductions and disappearances, which have been reported in alarming numbers over the past two years. While the government pointed to several initiatives it had taken to address these issues, there has yet to be an adequate investigation or credible public accounting for the vast majority of these cases…
"Regrettably, the various national institutions and mechanisms that could be expected to safeguard human rights have failed to deliver adequate protection. In particular, the Human Rights Commission of Sri Lanka, which had previously enjoyed a proud reputation internationally, has had its independence compromised by the irregular appointment of its commissioners and the credibility of its work has suffered.
"Further, despite high expectations, the special commission of inquiry appointed by the president more than one year ago to investigate high-profile killings and disappearances has yet to complete any of its cases. The Eminent Persons invited to observe the commission have expressed concerns about its compliance with international standards."
In its reply to the high commissioner's speech, the Sri Lankan government insinuated that such monitoring would infringe upon the nation's sovereignty and particularly the independence of the judiciary. However, there is no basis at all to see a conflict between support for investigations into human rights abuses by the United Nations and the independence of the judiciary.
The judicial branch would maintain its present powers regarding pre-trial, trial and appeal functions, as well as other functions under writ jurisdiction and fundamental rights. Human rights monitoring concerns how investigations are carried out, not how courts conduct their affairs under the laws of Sri Lanka.
The problem the human rights monitors would address is the very absence of such investigations, due to problems within the policing system. This would address the present impasse, and the police themselves would benefit if the likelihood of political interference into investigations were removed. Once U.N. human rights monitors address the limitations imposed on the Sri Lankan police for political and other reasons, competent Sri Lankan criminal investigators themselves will be able to play their role and regain their lost professional prestige and dignity.
The international community must urge the citizens of Sri Lanka to avail themselves of this invitation by the U.N. High Commissioner for Human Rights in order to address a problem that all citizens are well aware of -- the defective policing system of Sri Lanka. This is an opportunity to deal with a problem that has troubled the nation for several decades.
If the country's criminal investigation section is resuscitated it will be possible for the people to deal with such massive problems as corruption. To defeat corruption is not to defeat sovereignty but to assert it. It is quite clear that what the spokesmen against human rights monitoring are concerned about is not defending the sovereignty of Sri Lanka but defending a bad policing system, abuse of power and the massive corruption that prevails within the country.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
