Rule of Law Forum: 2024

Monday, December 23, 2024

The arrest, assault, and questioning of protestors and journalists

A Rule of Law and Anti-Corruption Ministry

Asian Human Rights Commission writes a letter to the Honorable President of the Democratic Socialist Republic of Sri Lanka on needed Justice Reforms

December 20, 2024 Asian Human Rights Commission writes a letter to the Honorable President of the Democratic Socialist Republic of Sri Lanka on needed Justice Reforms Honorable Anura Kumara Dissanayake President Democratic Socialist Republic of Sri Lanka Presidential Secretariat, Galle Face, Colombo 01, Sri Lanka. +94(0) 11 2 354 354 +94(0) 11 2 340 340 ps@presidentsoffice.lk December 19, 2024 Your Excellency, I am writing on behalf of the Asian Human Rights Commission, a regional Human Rights Organization based in Hong Kong, to raise three vital areas that need immediate attention by way of initiatives for reforms in order to ensure the restoration of the rule of law and respect for human rights in Sri Lanka. The Asian Human Rights Commission, which for over 30 years has consistently pointed out the exceptional collapse of the rule of law that has taken place in Sri Lanka – particularly since the adoption of the 1978 Constitution – is encouraged by the decision of the people to install the present government under your leadership of Sri Lanka as the government of the National People’s Power (NPP). We are a non-political organization; therefore, our interest in the matter is not one of partisan political interest but stems from a more general commitment based on the need for the restoration of the rule of law and, naturally, respect for human rights. Through our numerous publications, we have detailed the nature of the exceptional collapse of the rule of law in Sri Lanka. We do not think it is necessary – given your experience and understanding – to repeat the details of this collapse. In fact, your statements in Parliament over a long period of time, as well as the positions taken by the NPP in the last election, clearly illustrate that on this issue, there is a common ground between all those who look forward to a better system of governance in Sri Lanka and the vision of the present government. Therefore, we are glad that, for the first time in nearly 50 years, there is a moment when there is political will to make an impressive and historical change. To make this letter concise, we will focus purely on three practical issues that we think are essential if significant change is to be achieved in this area. We believe all three objectives could be achieved within a relatively short time. The three objectives that we are proposing are based on the assumption that the government elected in 1978 changed not merely certain external aspects of governance, but fundamentally altered the nature of the very legal system of the country. As a result, the operation of the rule of law in the manner in which the whole doctrine of the rule of law has developed over centuries could not effectively operate within Sri Lanka due to these fundamental alterations. While all these alterations must be discussed in more detail, we will only mention some of them. The very principle known as the principle of legality was displaced in Sri Lanka. This is the fundamental basis around which all other collapses of the legal system have taken place. Therefore, unless this particular aspect is addressed, it will not lead to undoing the damage caused by the changes brought about since 1978. In place of the principle of legality, the new system introduced after 1978, in particular, was one of arbitrary governance, which allowed the executive to act without any restraints arising from the legal system. Thus, the legal system had to be redesigned to adjust to the needs and convenience of the executive, which then also had the backing of a two-thirds majority in Parliament. This meant that any rule, no matter how fundamental for the proper functioning of the rule of law and the administration of justice, could be displaced purely by the decision of the executive. This was done repeatedly, and as a result, the whole system and process of protecting the rule of law was undermined. As anyone would explain through the history of development, the idea of the rule of law is that arbitrariness in governance should be reduced to a minimum, and that all matters relating to governance should be done according to clear legal norms. That legality cannot be an artificial legality based purely on majorities; it must be based on certain fundamental principles which cannot be amended or altered by anyone. Thus, minimizing arbitrariness is at the heart of the problem of dealing with the question of legality. It is this that has been displaced in Sri Lanka, and the entire design of governance as it exists now is based on arbitrariness rather than the rule of law principles. Mere declarations about the rule of law can be made abstractly, but what needs to be examined is the manner in which the system actually works. Therefore, the most important area for any serious lasting reform that would lead to an alteration of the current miserable situation is how to return to the principle of legality by displacing the principle of arbitrariness. We do not wish to make this into a long description. Instead, we wish to suggest how this can be achieved in the shortest possible time. We suggest that the following issues be given attention for this purpose. The Day-to-Day Hearing of Trials at the High Courts for Serious Crimes: The well-established principle in jurisprudence is that the effectiveness of punishment for crimes is not based on heavy punishments, but on the certainty of punishment following the commission of a crime. If there is uncertainty about punishment, the entire exercise of criminal law becomes fundamentally flawed, which is the current situation in Sri Lanka. We do not wish to delve into the history of how this situation came about, but rather to address how this principle could be implemented.The restoration of daily trials for serious cases, as they are heard in High Courts, is essential. The displacement of jury trials for criminal cases has resulted in judges directly deciding cases, and the option is left to the accused, naturally leading to delays in trials. Due to administrative problems, trial dates are frequently rescheduled, which can lead to cases dragging on for years – even decades. For example, a murder case can remain unresolved for 30 years. Various methods of postponement can be used due to the practice of frequent adjournments rather than adhering to the strict rule of hearing trials from beginning to end. In fact, a single murder case could easily be concluded within a week, or even sooner. Even more complex trials should not take years to resolve. The time between the filing of the indictment and the decision should be limited, and if the crime is proven, the accused should face punishment in a manner visible to society as effective and just. There is no real reason not to follow this rule except for administrative issues. With proper arrangements, these issues could be subject to serious scrutiny by a group of experts, including retired or even present-day senior judges. This group could offer suggestions on the necessary legislative, judicial, and administrative measures needed to ensure that the system works effectively. The benefits of such changes would be enormous, bringing about the kind of change that the people expect in a much shorter time than through other means. The practical and resource issues would likely find support from international agencies, which have in the past offered substantial financial support to improve the judicial system in Sri Lanka. Therefore, financial resources would be less of an issue. What is required is the political determination and vision to implement these changes. Public discourse on this issue will also contribute to finding solutions. Corruption Control Reform: Our second most important suggestion is to make corruption control more efficient by undoing the current practice of selecting criminal investigators for the Commission Against Bribery and Corruption from the police service. Instead, following a more enlightened practice that has proven enormously effective in other countries, such as the Independent Committee Against Corruption (ICAC) in Hong Kong, investigators should be selected from outside the police force and should be completely independent of the Inspector General of Police or any other department.Corruption control should not just be independent as an abstraction but should become an independent institution that recruits its own staff, trains them, and carries out operations in the manner done by organizations like the ICAC. The ICAC in Hong Kong achieved significant results within almost a year. Given the sophisticated talent available in Sri Lanka and the diverse educational qualifications of its citizens, recruitment, training, and operationalization of such a system could be achieved within a short time – six months to a year. What is needed is the political will, and where expertise is needed other countries would be willing to assist, provided a genuinely independent system can be created within Sri Lanka. This issue could be opened up for public debate, and there are many who can contribute to this discussion, both inside Sri Lanka and outside the country, as well as inviting international experts to assist. Reforming the Attorney General’s Department: The third suggestion is of a fundamental nature: the transformation of the Attorney General’s Department, which has evolved as a result of the changes made in 1978 to create a system convenient for the executive and allowing large spaces for arbitrariness. No rule of law could survive in this manner. A death blow has been dealt to the rule of law in Sri Lanka through the way the Attorney General’s Department has evolved over the last few decades.This is an enormously important issue, which has even been addressed in the manifesto of the National People’s Power (NPP). The transformation that occurred was fundamental – from rule of law to arbitrariness. What is now needed is a return from arbitrariness to the rule of law. If invited and given the opportunity, I am sure that the public will participate in this process, and there is sufficient talent within Sri Lanka to achieve these changes if proper opportunities are made available. We wish your government all the success. We believe that if these suggestions are given attention and full consideration, they will receive a favorable response through the actions of your government. Thank you very much. Basil Fernando Director Policy and Program Asian Human Rights Commission CC: 1. Hon. (Dr.) (Mrs.) Harini Amarasuriya Prime Minister Prime Minister’s Office 58, Sir Ernest De Silva Mawatha, Colombo 07 Tel: (+94) 112 575317 / 18, (+94) 112 370737 / 38 Fax: (+94) 112 575310, (+94) 112 574713 Email: info@pmoffice.gov.lk 2. Hon. Harshana Nanayakkara (Attorney-at-law) Ministry of Justice – Sri Lanka No 19, Sri Sangaraja Mawatha, Colombo 10. Tel: +94 112 433 192 Fax: +94 112 445 446 Email: minister@moj.gov.lk 3. Hon. Murdu Nirupa Bidushinie Fernando Chief Justice – Sri Lanka Tel: +94 011 243 7507 Registrar: registrar@supremecourt.lk

Saturday, December 14, 2024

Human Rights Day: A challenge to the conscience of the international human rights community

Human Rights Day: A challenge to the conscience of the international human rights community AHRC News 10 Dec 2024, 14:14 (5 days ago) to me To report SPAM or unsubscribe click Unsubscribe, to change preferences click this link FOR IMMEDIATE RELEASE AHRC-STM-021-2024 December 10, 2024 A Statement by the Asian Human Rights Commission on the occasion of Human Rights Day Human Rights Day: A challenge to the conscience of the international human rights community The Asian Human Rights Commission (AHRC) joins the rest of the international community today to celebrate and at the same time to reflect on the challenges faced by the global human rights project at this very crucial moment. We welcome the statement by UN Human Rights Chief, the High Commissioner for Human Rights, Volker Türk issued on this occasion, and we especially draw attention to the following quote from this important message. "Further, human rights are not merely abstract ideas. They offer concrete norms, laws, and a vital framework that protect against abuses, violations, and other harms, ensuring everyone, everywhere can live in dignity and respect. Human rights are a powerful force for good. Upholding human rights isn't only about addressing present injustices, it's about driving significant social change by reshaping unjust societies and empowering marginalized groups." The Asian Human Rights Commission notes with deep concern that in recent times there have been very significant challenges to the protection and promotion of human rights from around the whole world. The expectation of unanimous single-minded support for human rights as was hoped for at the time of the adoption of the Universal Declaration of Human Rights in 1948 seems to have been seriously undermined in recent years. Even the commitments for the promotion of human rights by the more developed democracies seem to have suffered a setback, and violent conflicts, protracted wars, and unspeakable attacks on civilians including children, women, and older persons have repeatedly occurred while the global human rights community and the systems established for universal protection of human rights were ignored for the most part. With shock and dismay, the world is once again calling for a reexamination of the concerns of the whole of humanity on the extent to which the world is willing to honor the undertakings that were declared by the end of the Second World War with the hope that the past crimes will not be repeated and that humanity may begin to work towards a better future for everyone. As the Asian Human Rights Commission is based in Asia, and is engaged mostly in the work in South Asia and South East Asia, we also wish to draw the attention of the world to many forms of horrendous suffering, and denial of rights that prevails in this part of the world. Despite promulgations of international covenants of civil and political rights, economic, social, and cultural rights, and articulation of many rights to various conventions, the overall situation of respect for human rights in this part of the world remains dismal and shockingly backward. Besides the failures of respect for human rights in general, the neglect of the environment and the natural resources are of such a nature that there is reason to fear the possibilities of great catastrophes emerging in the region, particularly with relation to climate change and manifestations of natural calamities. Inadequate attention has been paid to these problems, particularly since deep crises are faced in the areas of the national economies. Poverty overpowers everything else, and in fact, even creates indifference towards all other problems. There seems to be a manifest lack of political will to deal with these problems which in itself also constitutes a serious problem. In the areas of civil and political rights, in the countries of South Asia and South East Asia, there are extremely acute problems relating to the right to life by way of various forms of extrajudicial killings including enforced disappearances, illegal arrests, and detentions authorized under many pretexts, denial of fair trials to a scandalous degree, and the attacks on freedom of expression, association, and assembly. Free and fair elections are denied in many places, and thus civic space has been artificially limited to pave the way for greater repression. What makes it worse for civil and political rights is the failures of investigative and prosecutorial systems in many of the countries. Getting away with murder and other great abuses of human rights violations is made easy by poorly functioning criminal justice institutions, and politically controlled prosecutorial systems. The global human rights community has not paid adequate attention to these serious civil rights problems existing in the developing countries in the world including that of South Asia and South East Asia. In the areas of economic, social, and cultural rights, many countries are faced with acute problems of poverty, unemployment, food-related deprivations, and also health and medical facilities. One of the reasons for this situation is the global arrangements concerning international debts. The nations caught up in the debt traps simply have no way of escape, and the result is exorbitant rises in the basic foodstuff and other necessities. International discourse on human rights today requires a genuine effort to find ways to help the nations that for one reason or another are caught up in debt traps to find avenues for escape so that the resources available in their countries could be used for the improvement of their living conditions, and improvements of the quality of the human rights. Of greatest importance at this time is to pay special attention to countries that are faced with the problems of civil war. It is a moral duty to express concern, particularly for Myanmar where an intense civil war has been the result of actions by the Burmese Military leaders to undermine the democratic processes in the country. As a result of this civil war, large numbers of people have been killed, and enormous numbers are displaced. All normal activities have come to a serious crisis. The global community owes a special obligation to all the people of Myanmar including all of its ethnicities, to create an environment in which they can return to a normal way of life and become part of the human rights community in the world. A special word must also be said about a great threat to national economies posed by certain political regimes, and some of their leaders. It should become a part of normal human rights concerns of the human rights community to assist the people of these countries to recover their stolen assets which have been deposited mostly in places outside their national territories. We particularly welcome the political interventions of the masses in recent months, in Bangladesh and Sri Lanka. In both of these countries, people themselves have taken to active participation demanding the end of the autocratic system of governance and demanding significant structural reforms in all areas such as political systems, legal systems, and also systems of welfare particularly to the poorest section of society. There is a general mood of a demand for greater civic space so that people themselves can participate in determining the conditions under which their rights can be protected. In this, it is the younger adult population of today that has begun to articulate the new aspirations of the people of these countries. The global human rights community should take a fresh look at these changes, and assist in every possible way to achieve the kind of institutional reforms that the people are demanding to ensure greater respect for democracy, the rule of law, and human rights. System change has become a trending hashtag. The global human rights movement needs to make "System Change" its main area of concern, particularly for developing countries. Thus, we support the call by the United Nations High Commissioner for Human Rights, Volker Türk to make the respect for human rights a matter of international public challenge by extending practical support to those persons and nations whose rights have been blatantly violated. # # # The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.