During the General Debate under Item 2 at the 18th Session of the United Nations Human Rights Council on 12 September 2011, H.E. Kunanayakam criticized the United Nations High Commissioner for Human Rights, Navi Pillay for her apparent ‘partiality’.[1] One is at a loss to comprehend what ‘partiality’ the Ambassador alludes to, except perhaps the fervency in which the High Commissioner has thus far discharged her mandate. In any event, there is no doubt that the High Commissioner will wear this curious brand like a badge of honour. The Ambassador goes on to state:
I must also observe that it appears that the High Commissioner does not have the will to even acknowledge a paradigm shift in the policy of the Government of Sri Lanka. In her statement, she treats the lifting of emergency regulations so lightly and fails to acknowledge that they are withdrawn in their entirety. Sri Lanka observes that the High Commissioner’s position on the withdrawal of emergency misleads the Council with regard to the true legal position.Any government apologist would be expected to make the point that emergency has been lifted and that normalcy has been restored in the country. In other words, it is perfectly safe to hold the Commonwealth Games in Sri Lanka. Yet the Prevention of Terrorism Act (PTA) continues to be enforced—a negligible detail. Not surprisingly, the Ambassador fails to mention that the government has also introduced new regulations—just in case broad powers of search and seizure; detention without indictment for a period of up to eighteen months; admission of confessions in police custody as evidence; and the reversal of the presumption of innocence, all provided for under the PTA, are not enough to combat terrorism in the current context. The Government of Sri Lanka is obviously eager to eat the cake and have it—perhaps even place it under preventive detention. Despite signalling to the international community that normalcy has been restored, the government wishes to keep the anti-terror trick up its proverbial sleeve. The PTA and the additional regulations will no doubt be instrumental when the government looks to suppress dissenting voices in the future.
In conclusion, Madam President, it has to be appreciated that each Member State of this Council does recognize the need to have a security related legislation, and it has to be noted that Sri Lanka’s only existing legislation as it stands today is less stringent than the modern legislations of some other countries, which provide for the most stringent of measures in the treatment of terrorism.
Returning to H.E. Kunanayakam, one is a Google search away from stumbling upon a delicious piece of irony. The Ambassador has commented on emergency and the PTA before. In fact, she appears to be remarkably proficient in analyzing the far-reaching consequences of the PTA, the same piece of security related legislation she calls ‘less stringent than the modern legislations of some other countries’. Back in February 1987, when the current UN Human Rights Council was called the Commission on Human Rights, and current presidents were called defenders of human rights, H.E. Kunanayakam launched a blistering assault on the emergency regime in Sri Lanka.[2] In an astonishingly lucid account of the dangers of anti-terror laws such as the PTA, she observed:
The Prevention of Terrorism Act and Emergency Regulations have removed most of the legal safeguards prescribed under the International Covenants on Human Rights. Prolonged incommunicado detention without trial is the norm. The whereabouts of people arrested and detained are not made known to relatives. Lawyers and relatives have no access to detainees in most cases.These sentiments ring eerily true almost 25 years later. Though little has changed as far as the predicament of those affected by emergency laws and the PTA are concerned, the voices that spoke on their behalf have now abandoned them.
Most of the arrests, the victims of which, by and large, are Tamils, are effected under the Prevention of Terrorism Act and Emergency Regulations. It may he noted that the Prevention of Terrorism Act has been described by the International Commission of Jurists as an ugly blot on the statute book of any civilised country. Sri Lanka has been ruled by the present government under a state of emergency for most of its life since 1977.
[I]t is in this context that many substantiated cases of torture and deaths in custody have been reported, so much so that the Special Rapporteur on Torture has expressed great concern [in] his report referring to Sri Lanka. The suspension of important legal safeguards under the Prevention of Terrorism Act and Emergency Regulations have created conditions conducive to the practice of torture.
Mr. Chairman, no longer can the government of Sri Lanka divert the attention of those genuinely concerned by the human rights situation in that country by references to separatism and terrorism. It must, as we said earlier, address itself to the root causes that have given rise to violence and violations that characterise Sri Lankan society today.
There is a bitter lesson to be learned from this metamorphosis. Human rights defenders of today may return as government apologists tomorrow. This is not to say that the human rights community of Sri Lanka is packed with wolves in sheep’s clothing. Yet the community must be prepared to expose purely agenda-driven activism. The embarrassing contradiction that has befallen the Ambassador confirms the intuition that ‘human rights’ is not merely a set of rules, but a set of convictions; it is a calling that must be jealously guarded against usurpation by self-serving imposters. It is, ultimately, an enterprise that must proudly welcome the accusation of partiality.
[1] http://www.mea.gov.lk/index.php/en/media/3013-statement-by-he-tamara-kunanayakam-ambassadorpermanent-representative-of-sri-lanka-during-the-general-debate-under-item-2-at-the-18th-session-of-the-united-nations-human-rights-council-12-september-2011-geneva.
