For press freedom by Sunanda Deshapriya
Sunday, 12 December 2010 08:01
Former Chief Justice Sarath N. de Silva spoke on 10-12-2010 regarding the present human rights situation in Sri Lanka. He did so delivering the keynote address at the ceremony organized by ‘Intellectuals for Human Rights’ at the B.M.I.C.H. to commemorate the International Human Rights Day.
Former Chief Justice said:
The 10th of December is commemorated throughout the world as the International Human Rights Day. I am happy to accept the invitation extended to me to attend this ceremony arranged by the ‘Intellectuals for Human Rights’ to commemorate the International Human Rights day, in Sri Lanka. Further, I am honoured by their invitation to deliver the keynote address on the theme of the ceremony – “Human Rights in Sri Lanka after thirty years of War”.
The Second World War, in the period September 1939 to August 1945 is considered the most fierce human conflict in history. At it’s conclusion the free Nations of the World assembled to establish the United Nations Organisation, the objects of which are to secure world peace, political and social stability. In pursuit of these objectives the earliest action taken by the U.N. was to proclaim on 10th December 1948, with unanimous assent and approval of the Member Nations, the Universal Declaration of Human Rights as “the common standard of achievement for all peoples and all nations”. Previously great philosophers, particularly, Locke, Rousseau and Paine, in their writings developed the concept of the inherent and inalienable rights of man derived from natural law. Further, in certain countries such as, in England by the Magna Carta (1215) and the Bill of Rights (1688); in France, by the Declaration of the Rights of Man (1789), proclaimed after the French Revolution and in the United States by the first ten Amendments to the Constitution made in 1791, there had been a recognition of certain basic rights of the people that were enjoyed equally, without distinction and which were inalienable. However, we turned to a golden page in history with the proclamation of the Universal Declaration which recognizes as a part of International Law, a body of rights derived from the inherent dignity of being a member of the ‘human family’, enjoyed equally by everyone at common and are inalienable. This was an important juncture in the process of civilization. Today, we commemorate that historic moment.
Human Rights formulated in broad terms in the Universal Declaration, have been more specifically defined in two Covenants of the U.N. which came into force in 1976. They are;
i. The International Covenant on Civil and Political Rights and
ii. The International Covenant on Economic Social and Cultural Rights.
Our country gained independence on 4th February 1948 and was privileged to be amongst the first States to assent to the Universal Declaration in December that year. Special Chapters have been included in the 1972 Constitution and the 1978 Constitution which is now in force, titled ‘Fundamental Rights’. These rights have been formulated on the lines of the Universal Declaration.
The Universal Declaration was drafted after much deliberation with an input by leading professionals and philosophers. It’s the Preamble which includes the abiding rationale of safeguarding the rights, states in its third paragraph as follows;
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”
The background to this thinking was the suppression of peoples rights by tyrannical fascist rulers such as Hitler and Mussolini which led to horrendous consequences. In Europe, being the theatre of the war, countries under the aegis of the Council of Europe agreed in November 1950 to adopt a separate Convention on Human Rights with a Commission and a Court of Justice which was empowered to entertain petitions of individuals in respect of violations of their human rights by any State and to grant them relief against such State. The carefully planned out structures and mechanisms for the due safeguard of human rights resulted in the region which was the most affected by the war progressing to be one of the most developed, peaceful and prosperous regions of the world. Germany, which was devastated by the war is now the country with the strongest economy and probably the highest standard of life. The situation is broadly similar to most developed countries that we describe as the ‘Western World’ where human rights have been safeguarded by the rule of law. Sri Lankans are clamouring to go to those countries to benefit from these attributes.
The true situation in our country, which we have to face up to is starkly different. From 1959 onwards, from time to time we have had widespread communal clashes. The worst being that in July 1983. In 1971 there was an armed insurrection of Southern Sinhala youth. In the period 1988/89 there were similarly directed killings and destruction. From 1979 up to 2009 there was the terrorist war in the North and East. Although described as Ealam War i – iv they are merely stages in a single fearsome process. Our social structure has been severely fractured by these events and the country has moved into a state of economic depression. Whatever be the statistics that are trotted out, the truth is that the cost of living is steeply rising and the rate of unemployment is increasing. Even segments of the middle class are being reduced to poverty. However, after the Second World War and especially after the Korean War in the early 1950’s, we had the strongest economy in the region. The Prime Minister of Singapore, being a country which gained independence at that time has stated that he looked to Sri Lanka as an example to emulate. The situation is entirely different now. As we emerge from thirty years of war we have to reflect deeply on the fact that our country has descended in this manner.
According to the doctrine of dependent origination comprehended by the Buddha every phenomenon results from causes and if it is to be alleviated, the causes which led to it should be redressed. When we reflect from that perspective, it would be seen that corruption, inefficiency and maladministration in the organs of government have contributed fairly to the country descending to its present state. However, the major causes are the insurgencies, the social disturbances and the terrorist war. The government with the force of arms, suppressed the insurrection and rebellious conduct in the South and by the end of May 2009 defeated the terrorists. However this is not a cessation of the causes that led to the phenomenon. Social issues can never be solved by the recourse to arms.
The victorious Nations in the 2nd World War after defeating the fascist invaders intelligently examined the causes that led to the disturbed situation and the War. They realized then that the course of action taken in the aftermath of the First World War had not been prudent. In that war too Germany was the defeated nation and the then victorious nations subjected Germany to humiliation including the payment of reparation for the damage caused by the War. The country became weak and there was unrest and dissatisfaction amongst its people. It is in this unstable condition that Hitler seized power. He whipped up a belligerent nationalist fervour and drove the people to invade the neighbouring States starting with Poland, in quest of his dream of being the strongest leader in the world. This led to the World War. Having grasped the causes, two broad courses of action were taken; the first was to restore human dignity by safeguarding the fundamental freedom of everyone without distinction and the second was to establish mechanisms for economic and fiscal stability. The phenomenal success out lined before resulted from this wise course of action. It is seen that their approach has been consistent with the Buddha’s path.
Instead, if they acted with deficient minds to gloat over the victory, to inflate their image on the strength of having defeated the fascist leader and to look at the people who were with the fascist leader with suspicion and subject them to humiliating and degrading treatment, the world would have reverted to a state of turmoil.
I would now briefly survey the events in our country, from the perspective of human rights drawing an insight from instances of world history referred to before.
In tracing the descent from the position of strength and stability in the early 1950’s to the present, the following events emerge-
With the enactment of the Official Language Act in 1956 there was a shrinking of employment opportunities in the State sector to Tamil persons. The requirement that they should acquire proficiency in the official language led to a perception of discrimination. Although there was provision in the Act for steps to be taken to provide for the reasonable use of Tamil, that was not meaningfully implemented. The 13th Amendment to the Constitution effected 21 years later in 1987 with the intervention of India which provided that Tamil shall also be an official language and English shall be the link language, came too late and could not douse the flames of war that were burning.
Colonization schemes of mainly Sinhala persons that were implemented from time to time along with the vast improvement of irrigation facilities in the North Central and Eastern Provinces led to a perception amongst the Tamils that they were being kept away from those areas. The largest of the irrigation and hydro power schemes is the Mahaweli Scheme including systems A to D2 are in the Eastern Province in areas populated by Tamils. Only systems H, C, B and G located in Sinhala areas were developed. There was stiff resistance to the development of system L (Weli Oya) in the North and the settlement of Sinhala families there. This was the site of fierce fighting in the war in which hundreds of lives were lost.
The ‘Free Trade Zones’ and Economic Zones which generate large scale employment are located in the Western Province with a dominant Sinhala population and there was an overall shrinking of employment opportunities to the Tamil people.
As stated before, from 1959 to 1983, there were several instances of communal violence resulting in loss of life and property to Tamil people.
These and other events of similar nature led to a deep seated fear and perception amongst Tamil people that their human right to live in the country as equal citizens is being denied and that they are being discriminated against by governmental action. The traditional Tamil political parties used this sentiment as a weapon to gain political power by demanding extreme solutions – at first a Federal State and later liberation for their areas. This led to a nationalist fervour and a stiff resistance to any demand made by the Tamils, amongst the Sinhalese. The situation was ripe for extreme action and Prabhakaran aroused a militant communal fervour among Tamils and drove an otherwise peaceful community to thirty years of war. He described himself as the ‘Sun God’ and emerged as the only saviour of Tamils. The situation is parallel to pre-war Germany where the fascist dictator Hitler emerged as the total leader as outlined before.
In May 2009 our armed forces defeated Prabhakaran, similar to the defeat of Hitler by the Allied Forces. The German people trusted the Allied Forces and rallied round them. In a similar manner Tamil people fled from the stranglehold of Prabhakaran, to liberated areas. The fact that they trusted our Armed Forces is manifest from the events that I would now refer to.
A few days after the hostilities ended, with a group of friends and officials I had the occasion to visit several camps in Vavuniya and Mannar (Menik Farm) in which refugees were being housed. As, Chief Justice I was permitted to visit a school close to Vavuniya where about 1200 males were being detained as terrorist suspects. I questioned them as to the basis on which they were suspected as being terrorists. They replied that with their families and thousands of others they fled from the area controlled by the LTTE and went towards personnel of the Army who requested the members of the LTTE to go in the direction of the school in which they were housed and others including the members of their families were requested to go in the direction of ‘Menik Farm’. They informed me in the presence of the officials that they complied with this request since it was promised that they would be rehabilitated and found employment abroad. Their earnest plea was to be reunited with their families and to be permitted to return to their homes. The fact that nearly 300,000 persons were detained in refugee camps for months in sordid conditions without meaningful and expeditious action being taken to permit them to return to their homes is a tragic denial of human rights.
In the time of the war, in the Jaffna peninsula, houses, buildings and agricultural land was taken over, mostly without recourse to formal acquisition proceedings to establish ‘High Security Zones’ that were necessary due to the increasing ‘fire power’ of the LTTE. However, after the conclusion of the war, no meaningful action has been taken to restore these lands or to provide alternative lands or, to pay compensation to affected persons. This is a denial of the human right to the equal protection of the law.
Emergency Regulations made under the Public Security Ordinance and special laws such as the Prevention of Terrorism Act, necessary in the time of war are being continued in force. The magazine ‘Rights’ published by the Intellectuals for Human Rights disclose that thousands of persons are yet being detained in different locations pursuant to administrative orders made under those laws. Similarly, the Annual Reports of the organisation specify in a time sequence, serious instances of violation of human rights to personal security, freedom of movement, speech and assembly and media freedom including wanton damage caused to free media institutions.
The events outlined above reveal that after the conclusion of a thirty year war the protection of human rights in our country had descended to a low ebb. This attitude of our Government to the protection of human rights is a stark contrast to the enlightened and highly rewarding course of action taken by the victorious nations of the Second World War outlined by me previously. Instead, our Government has taken action to further consolidate and enhance its executive and legislative power and also to further restrict space for the meaningful enjoyment of human rights of our people.
After the war was over, without speedily addressing the welfare needs of the Tamil people and uniting the country by restoring the human rights of all, following the example of the world community cited before, the Government advanced the Presidential Election that was due 2 years later, in November 2011 and riding on the wave of popularity gained by the military victory, secured a further term. Worse still, the 17th Amendment to the Constitution unanimously enacted by Parliament on 3rd October 2001 with the objective inter alia of safeguarding the human rights of the people, by establishing independent, Police, Public Service, Elections and Judicial Services Commission and to ensure the independence of the Judiciary on the whole, was without being properly implemented, reversed by the 18th Amendment to the Constitution. The 2/3rd majority required for this purpose in Parliament was secured by the offer of ministerial portfolios and other benefits to Members who were elected on votes cast by the people in favour of the opposition. Further, events and functions that have been felicitated in the past in a plain and simple manner are now celebrated in grandeur at huge cost and expense to the public to boost the image of the Executive. It has to be observed that centralization of executive power without necessary checks and balances being in place, is the anti thesis of the protection of the freedom and fundamental rights of the people.
I would now refer to an instance of a gross violation of human and fundamental rights to demonstrate that we are on the wrong track in honouring and safeguarding these rights in keeping with our pledge to the world. It is the purported arrest and incarceration of General Sarath Fonseka. He was the Commander of the Army that defeated the terrorists in battle and secured a victory to the State in the thirty years of war. He was described by the Government as the best Army Commander in the world. He lawfully retired from public service and contested the Presidential Election as the common opposition candidate. He lost and challenged the result as being fraudulent. A few days later when he was at a meeting with leaders of other political parties to discuss a strategy for the upcoming Parliamentary elections, personnel of the Army which comes under the direction of the President as Minister of Defence and his brother, the Secretary Ministry of Defence forced their way into his office, pushed him to the ground, dragged him down the stairway and imprisoned him in a secret location.
Thereby he was denied the human right secured by Article 9 of the Universal Declaration which guarantees to every person the freedom from arbitrary arrest and detention. Article 13 of our Constitution specifies the manner in which the human right to personal security maybe lawfully restricted. According to Article 13 (1) a person may be arrested only according to the procedure laid by law being the Code of Criminal Procedure Act No 15 of 1979. The Code empowers a Police Officer investigating the commission of criminal offence to arrest any person reasonably suspected of having committed any offence after explaining to him the reasons for such arrest. There was no investigation by any Police as provided in the Code which resulted in Fonseka’s arrest.
Article 13 (2) of the Constitution requires that a person arrested and detained shall be produced before the judge of the competent court within the time period specified by the law. The Code lays down such time period as being within 24 hours of the arrest. Fonseka has not been produced before any Court as required by the Constitution and the Code. Thus the fundamental right guaranteed to him by Article (13) 2 has also been infringed.
The position of the State is that Fonseka was arrested under the Army Act. It has to be borne in mind that the Constitution is the Supreme Law of the Country and according its basic Article 3 fundamental rights form part of the inalienable Sovereignty of the People. In terms of another basic Article 4(d), fundamental rights declared by the Constitution have to be “respected, secured and advanced by all organs of government” and shall not be restricted except in the manner and to the extent provided in the Constitution. The restriction of the right guaranteed by Article 13 permitted by the Constitution in respect of members of the Armed Forces is contained in Article 15(8) according to which for the restriction to operate, three conditions have to be satisfied viz;
I. At the time the fundamental right is being restricted he is a member of the Armed Forces
II. The restriction has to be prescribed by law in the interests of the proper discharge of his duties and
III. to maintain discipline
It is clear that none of these conditions are satisfied in respect of Fonseka who had retired several months prior to the arrest.
Even under the Army Act the only provision empowering an arrest is in section 36(1) which states that a senior officer may direct the arrest of a junior officer. Further, sector 40 empowers only the Commanding Officer of any accused Officer to investigate any offence committed by such officer and to present charges against him. Clearly there is no senior officer or a commanding officer who is empowered to take action as permitted by those sections, against Fonseka who is a retired four star General. According to the facts revealed by the State, action has been taken against Fonseka, by a junior officer being a Lt. General. Military Law and it’s disciplinary procedure have thereby been turned upside down.
It is manifest from these facts that Fonseka’s arrest and detection is politically motivated and is contrary to the Universal Declaration of Human Rights, the Constitution, and even the Army Act.
Thereafter Fonseka has been purportedly convicted by two Courts Martial and deprived of his rank, medals and pension. He has also been sentenced to 2 ˝ years Rigorous Imprisonment and deprived of his seat in Parliament to which he was elected by the people.
Section 10 of the Universal Declaration of Human rights provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The purported trials against Fonseka were not public hearings. And, in considering the fairness of the proceedings and the independence and impartiality of the Tribunals the following facts are relevant. The charges against him were sanctioned; the Courts Martial were appointed and the sentences recommended were affirmed; by his political rival being, the President.
It is thus seen, that the Human and Fundamental Rights of the Commander of the Army responsible for the defeat of terrorism and the creation of an environment of peace necessary for the enjoyment of human rights of all people in the country, have been blatantly violated. This is a gross act of ingratitude which runs contrary to all religious tenets.
When we emerge from thirty years of war, we have failed to learn a lesson from world history, that lasting peace and prosperity can be achieved only through the meaningful protection of human rights. On the contrary we have to regretfully observe that the protection of human rights in respect of all segments of our people, is moving to a dark and dismal era which irks even the laws of Nature. It is the tragedy of our country that politicians who portray themselves as guardian deities of human rights when in opposition, turn out to be its destroyer after gaining political power.