WORLD/SRI LANKA: Chaos and order in the country reviewed in the context of the draft reso ution !

efore the "u#an Ri$hts Counci

March 20, 2014 The draft resolution which is soon to be debated can be looked at within a wider perspective from the point of view of the chaos that resulted from insurgencies and counter-insurgencies in all parts of the country since 1 !1, and by looking more closely into the reestablishment of order within a framework of the rule of law in "ri #anka$ %etty &uarrels and s&uabbling could be set aside for a moment when all "ri #ankans, as well as the international community have a chance to reflect on the more vital issues of stability in the country in the light of a comprehensive approach for transitional 'ustice proposed by the draft resolution which has given rise to a worldwide debate$ (hile the world)s premier forum on human rights matters, the *nited +ations ,uman -ights .ouncil, debates this issue all concerned persons also have the occasion to contribute to the debate$ That the period following the /0% insurgency in 1 !1 has been a continuous period of internal conflict leading to intense bloodshed and the paralysis of the legal system is beyond controversy$ 1esides the insurgencies related situation of chaos2 there was also a more fundamental factor that contributed to disorder and instability which was the meddling with the constitutional structure of the country by way of the 1 !2 and 1 !3

constitutions$ 1oth those factors relating to the down sliding of law and discipline in "ri #anka has been the sub'ect matter of discussion for many decades$ Thus, the newly proposed resolution provides the scope and opportunity to address this overreaching problem$ 4t is the considered view of the 5sian ,uman -ights .ommission 65,-.7 which has continuously contributed to the debate on the rule of law and democracy in "ri #anka that the proposed resolution has the potential to provide scope and opportunity to resolve many of the fundamental problems besetting "ri #anka$ 4t is on that basis that the 5,-. welcomes and fully supports the draft resolution$ The draft resolution proposes a comprehensive approach to transitional 'ustice in "ri #anka$ 8oing beyond the usual scope of investigations relating to alleged war crimes and alleged crimes against human rights law and international humanitarian law, the draft resolution points out the need for institutional reforms and other measures to be accompanied in order to address the issues of transitional 'ustice$ The part of the draft resolution which lengthily narrates the factors leading to the proposed actions re&uiring the authori9ation of the ,uman -ights .ouncil, points to almost all the aspects that are usually discussed in the local debates on the present situation of "ri #anka and the causes that led to this situation$ The central 'ustification for the actions proposed in terms of an in&uiry to be conducted by the *nited +ations ,igh .ommissioner)s office is the failure on the part of the "ri #ankan government to deal with the issues raised through the domestic legal system as directed by the ,uman -ights .ouncil in its previous resolutions$ The failure of the domestic legal system to deal with the issues raised is no surprise to anyone who is familiar with the e:tent to which the internal legal system, particularly, the criminal 'ustice system and the constitutional system have failed in "ri #anka$ ;n this, once again, there is hardly any controversy and almost everyone, including the ordinary folk in "ri #anka, who constantly discuss the alarming lawlessness in the country agree on this analysis$ +o reason will be found to consider the basic assessment of the overall situation on which the draft resolution is based to be any e:aggeration$ 5s for the 5,-. we have categorised the situation that has prevailed in "ri #anka for several decades as one of an e:ceptional collapse of the rule of law$ Most recently the debate on the 1!th 5mendment to the .onstitution and the 13th5mendment was on this very issue of the e:ceptional collapse of the rule of law in the country$ The reason why the "ri #ankan parliament passed the 1! th 5mendment almost unanimously was the acknowledgement by all the political parties of "ri #anka

including the political parties which constitute the present ruling regime was that they were all completely in agreement on this matter$ *nfortunately even the limited attempts proposed by the 1!th 5mendment to deal with the situation were abandoned by the adoption of the 13th 5mendment$ The result of the 13th 5mendment was that from the point of view of law based stability people had to face the situation where they had to <abandon hope all ye who enter here=$ The average citi9en encounters this hopelessness on all occasions when they find that they become victims of the abuse of power and victims of the improper use of force and violence$ The improper use of force and violence in "ri #anka directly by the state and the failure of the state to protect the citi9ens from the abuse of the force and violence of others is perhaps the most commonly told complaint within the country$ (hat aggravates the situation is that the government does not agree that the use of enforced disappearances and e:tra'udicial killings and the threats thereof, routine use of torture and ill-treatment, the misuse of the powers of arrest and illegal detention including the improper resort to the use of detention orders to harass citi9ens, the most unscrupulous forms in which charges are fabricated by the law enforcement authorities with the connivance of the 5ttorney 8eneral)s >epartment which blindly follows the orders from above, the virtual impossibility to obtain a fair trial on politically motivated cases and the virtual paralysis of the legal system to deal with ordinary crimes including those affecting women such as rape and se:ual abuse needs to be addressed$ The abuse of the anti-terrorism laws has also come in for serious criticism$ The obvious aggravating factor is the visible undermining of 'udicial independence$ Thus, the "ri #ankan)s are faced with the situation of having to accept one of the following alternatives$ That is either living without the protection of law or believing that there must be some means to deal with the situation forthwith$ 4t is this second alternative that has become available through the medium of the proposed resolution$ 4f the resolution is passed and if the *nited +ations, with the help of the international community and the people of "ri #anka pursue the resolution firmly an unprecedented possibility of overcoming the deadlock that "ri #ankans face will arise$ (hat makes that possibility greater is that the resources of the international community as well as local resources could be harnessed$ The most significant opportunity has now come before the "ri #ankans to resolve the most fundamental problems they face is now within reach$ To lose this opportunity is to continue to live within that same hopeless situation which can only become worse$ The 5sian ,uman -ights .ommission is hopeful that some of the most comple: problems arising from the absence of the rule of law can be addressed$ 4n that sense the draft resolution presents a moment of destiny$

%osted by Thavam