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This defeat for Sri Lanka is a clear indication that the world is beginning to learn of the enormous repression within the country, and is condemning it unequivocally. It is no surprise that the country with the largest number of disappearances and widespread lawlessness has not been given a place on the U.N.’s leading human rights body. Hopefully, in the future members seeking election to the council will be subject to more critical examination.
This should be a moment for somber reflection on the part of those who hope to bring change within Sri Lanka. There has been no dearth of reports, analyses and recommendations on needed changes. However, the present regime -- which has perfected the art of denial of earlier regimes -- has not taken this criticism seriously. Instead, attacking the critics has been the preferred method of dealing with human rights. Perhaps now the government will finally take notice of the most fundamental problems.
The Sri Lankan Constitution of 1978 is fundamentally flawed and does not support a liberal democratic form of governance. This Constitution places the executive in a controlling position over the Parliament and the judiciary, and makes the executive president the sole arbiter of all fundamental decisions in the country, displacing a consultative process.
Limited reforms adopted in 2001 by way of the 17th Amendment to the Constitution were rejected by this regime through its failure to appoint a Constitutional Council as required by the Constitution. This constitutional crisis prevents any serious remedial measures being taken on any of the major problems affecting the country.
The criminal justice system, which should protect people’s security, has been so thoroughly neglected and undermined that it cannot deal with ordinary crime, let alone human rights abuses by state agents. The police system responsible for criminal investigations no longer enjoys the confidence of the people. This did not start under the current regime, but this regime is guilty of allowing the situation to degenerate further despite being fully aware of the problem -- as evidenced by statements made by the president and others in the government when they were in the opposition.
Today there is a widespread feeling of insecurity in the country. This is not just because of possible terrorist threats, as is often made out, but due to the collapse of police and judicial protections within the country.
Also the Attorney General's Department, which exercises the role of prosecutor, has completely failed, as evidenced by the 4 percent success rate in ordinary criminal prosecutions. It has no success at all in prosecuting cases of forced disappearances, custodial killings, abductions and the like. The judiciary has suffered due to executive control under the new Constitution and no longer holds the prestige that it once did.
The abuse of the powers of arrest and detention, particularly under anti-terrorism laws and emergency laws, has created an intense fear psychosis in the Tamil minority in particular, who feel that under the pretext of measures taken against the Liberation Tigers of Tamil Eelam, the Tamil minority as a whole is being held hostage.
The equation of terrorist attacks on people with the abuse of rights by state officers has virtually prevented the possibility of credible inquiries against even the most indefensible attacks on civilians -- as symbolized by the Trincomalee student killings and those of 17 aid workers in Mutur. A more responsible approach would be to hold the state officers accountable. When attacks by terrorists are used to build psychological support for similar or worse forms of retaliation, all the people suffer.
In an ultimate sense a nation consists of, among other things, the public institutions and their credible functioning. There is nothing more demoralizing to a people than to lose faith in their institutions. No terrorist organization can do as much damage as a government that abandons its responsibility to keep the state institutions functioning.
Talking about the Human Rights Commission of Sri Lanka as the apex institution for the protection of human rights is sheer nonsense. To achieve respect for human rights, the investigation divisions, prosecuting divisions and the judiciary must be improved. Without this the commission can do nothing more than a scavenger’s job. Emphasis must be placed where the cure lies, which is in repairing the basic system of justice; otherwise no proper debate can take place for the improvement of rights.
There is no doubt that Sri Lanka faces a serious terrorist threat from the LTTE. However, the origin of the problem -- and the solution -- lies in an honest attempt to recognize minority rights and create a state structure wherein the majority and minority can coexist without considering each other a threat.
The state must create a climate in which a vibrant democratic system can guarantee the rights of the majority and the minority. Repression under the pretext of controlling terrorism harms not only the minority, but the entire population.
Condemnation and punishment are of no use unless there is a constructive engagement to make things better for the future. A nation that separates itself from the rest of the world under various pretexts only risks isolation -- and the bitter fruits of isolation can be seen in the suffering of the Burmese people hit by Cyclone Nargis. When the state does not take a constructive approach to remain credible, every disaster -- be it natural or economic or even environmental -- can degenerate into a manmade disaster.
Prudence requires taking appropriate measures when things have gone wrong. The Sri Lankan people must prudently consider what they want for the future. The present regime, like recent previous regimes, particularly since 1978, has taken the country down a disastrous path. A politically prudent approach to the international rebuff suffered at the Human Rights Council by the Sri Lankan government is for the people to enter into a critical dialogue with all the political parties on all the fundamental issues that are facing the nation.
Now that the international community has begun to recognize the human rights crisis in Sri Lanka, the Human Rights Council and the United Nations should engage constructively with the Sri Lankan government, as well as the people, so that this dark course of history can be changed for the better.
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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. His blog can be read at http://srilanka-lawlessness.com.)
