UNHRC to decide on the possibility of fresh resolution
MAY 13 2016
Recommendations calling for Constitutional guarantees to enforce UN human rights treaties, including the Convention Against Torture (CAT) will be an emphasis in the final report to the Human Rights Council by the Special Rapporteurs who visited Sri Lanka recently.
The Daily News had the opportunity to interview the two experts at the UN Compound, shortly after they wrapped up their official engagements in the country.
The two UN legal experts, who had been pleased with the way the government facilitated their mission said it was the member states at the Human Rights Council which decide whether their findings will merit a fresh resolution on Sri Lanka.
The rapporteurs have also proposed structural reforms in the key legal institutions, stressing that the country needed to get rid of the 'old structures of a nation at war'.
Special Rapporteur on torture Juan E. Mendez, a professor of Human Rights Law and Rapporteur on independence of the Judiciary Monica Pinto, a professor of International Law - both of Argentine decent - were here recently on the invitation of the government to review the country’s judicial system and the safeguards against torture. Their preliminary conclusions and recommendations were presented to Foreign Minister Mangala Samaraweera on May 7. Their final reports will be presented to the UNHRC in March 2017.
Excerpts
Q: This is the first time two UN special rapporteurs made a joint visit to Sri Lanka. Is there an underlying message in this to the government
Mendez: I have made joint visits such as this to other countries. It’s basically a way of maximizing resources and especially, taking advantage of the willingness of the state to invite us and accept that we make a joint visit. In addition, our mandates have some interesting and important overlaps, the protection against torture demands an independent judiciary and independent prosecutors. I benefited at least from being able to conduct interviews together with Dr. Pinto.
Q: It wasn’t to say that the country’s Human rights record is so bad that it merited two rapporteurs to visit at the same time
Pinto: No, the government accepted not just us but two other mechanisms for the near future. In fact, our fields overlapped in relevant issues.
Mendez: We thought it was better to make a joint visit in order not to waste time of officials and also to cover more territory as well. We split visits between us.
Q:When visits of this nature take place, political players take center-stage and victims hardly get a chance to speak of their grievances. How do you make sure that you meet the victims of war
Mendez: We met the victims of war and torture, including the people accused of common crime offences, not only political crime. My mandate is to be with victims, survivors and their families. When we visit jails and speak to prisoners, we do that on conditions of privacy, so that they do not have to fear of reprisal for talking to us.
We make a huge effort to talk to the government, talk to civil society, but most importantly to the victims. By the methodology of interviewing, we know whether they are victims or not.
Pinto: I have met a good number of lawyers dealing with cases under PTA and the victims of cases of justice miscarriage, in Colombo as well as in other cities we visited.
Q:Since the last visit of the special rapporteur on torture, has there been any improvement in conditions in Sri Lanka
Mendez: This is my first visit. My predecessor visited Sri Lanka in 2007. His report is available, but I have to compare it with what I have seen. I would say the changes are significant. There is no war to begin with, there hasn’t been war for about seven years. The reports of torture are less frequent, perhaps even the methods are less horrific, but unfortunately, we cannot say torture is a thing of the past. Torture is still frequently used as a method of interrogation. There is a serious case of treatment in prisons and their conditions. The government needs to address those urgently because they are serious.
Q:What is your take on the detention centres, what is the Sri Lankan situation, in comparison Are they as bad as any other detention centre you’ve visited recently
Mendez: We don’t make comparisons between countries. Not because it’s a rule, but because, it is difficult to compare, it really is mixing apples and oranges. For example, in some countries, they have absolutely no physical violations, but they use prolong solitary confinement. It is mental torture. How can one compare if that mental torture is better or worse than physical mistreatment So, we don’t compare.
I would say we visited detention centres here, we found shorter detention centres presented serious problems with ventilation and sanitation, they were supposedly for short periods, but we also visited, penal institutions and remand prisons. There, the conditions were also bad. The question of sanitation and ventilation appears everywhere, but in prisons, overcrowding is a serious problem.
Q: Do you think the conditions that prevail in prisons and detention centres in Sri Lanka are intentional or due to circumstances
Mendez: Torture in interrogation is always intentional. We have enough evidence that it takes place. Conditions in prisons are, generally, not intentional, but they are a matter of neglect. Under international law, cruel, inhuman and degrading treatment doesn’t require intent and the conditions that I saw in prisons amount to cruel, inhuman and degrading treatment, simply by the fact of overcrowding, and the physical conditions of the jails.
Q:What was your message to the government and the President What did they promise you
Pinto: We brought to the government, especially, to the Foreign Affairs Minister, some idea of our conclusions and recommendations. He did not promise anything, he thanked our comments. He said he would be waiting for our report and that both reports would be vital elements. I think he meant both the issues of the constitutional process and the transitional justice mechanism.
Mendez: They don’t make any promises until the full reports are available. What we did today was to submit our preliminary findings. Logically, they would wait for full recommendations. But, we found the officials receptive. We did not find an attitude of ‘you don’t know what you are talking about’. It could have happened!
Q: Will there be any recommendations to be incorporated in the new Constitution
Pinto: I made more recommendations in that field. I think the possibility of drafting a new Constitution or amendment to the Constitution is important. It can make room for some of the safeguards, on the independence and the impartiality of the justice system, procedures and criteria for appointment, removal, accountability mechanisms, including impeachment. It can be a great advantage for the future. Constitutions don’t get changed every two days.
It can also incorporate laws on international human rights, for example, the international convention against torture. It has been ratified by Sri Lanka, but like most other human rights treaties, it is not being enforced.
Q: At the press conference you said the countries facing terrorism have to abide by the same international rules and that they cannot apply special measures
Mendez: We did not say they cannot have special measures. We said special measures have to be in compliance with international law. That’s a different question. We recognise that countries face international terrorism, transnational organised crime. They need to equip themselves to fight those threats. But at the same time, it’s impractical and counterproductive to do it violating human rights standards.
In the area of international terrorism, if countries violate human rights in fighting terrorism, inevitably, they are creating a breeding ground for more terrorism and more recruits. I think the lessons learned from 2001 are clear, that not only you can fight terrorism respecting human rights but you must, because it is a way to be successful.
Q: Do you think the new government will take on board these recommendations in their fight against terrorism
Mendez: We did not discuss that. They told us that they were contemplating legislation in those areas. But since we haven’t seen drafts we did not get into details. We did suggest that we would like to make recommendations along those lines.
Q: What are the possible consequences of the two reports you will be submitting to the UN Human Rights Council next year What will happen if the reports are of a negative nature
Pinto: Each one of us has to draft a report. We have different dates to appear before the HRC. But since we were here together, we will try to present our reports at the same time. Normally, what the Council does is to consider the reports. The concerned state has an opportunity to engage in an interactive dialogue with us, as with all the other member states of the Council. Even at the general assembly next October, we have to present both mandates.
The government will have an opportunity to have a look at the reports, before going public. The text will be sent to the government confidentially. The government has a right to produce a statement. Then the report and the statement of the government will be presented to the Human Rights Council.
When we present our reports to the Council, the state will have the right of reply. We appreciate that the country was ready to invite us.
They have been open to us. All the visits have been facilitated by the Foreign Ministry and the President’s coordinator. It made our life easier.
We believe the government is ready to pay attention to what we are going to tell.
Mendez: Hopefully, we will get a debate at the General Assembly and the Human Rights Council sessions.
That really doesn’t depend on us. It will be the member government’s decision to intervene and ask questions.
Q: Will these reports lead to another negative resolution against Sri Lanka in the Human Rights Council
Mendez: That is up to the states to decide. We don’t propose resolutions but states can and it is voted by the council. We will be there to ask questions, and to defend our reports.
