Sunday, January 22, 2017
An unseemly and wholly unnecessary uproar arose this week over a proposed clause in Sri Lanka’s National Human Rights Action Plan (NHRAP, 2017-2021), which had apparently mentioned the need for a two-thirds majority in Parliament to pass a State of Emergency.
NHRAP limited to grand expectationsMinisters loyal to President Maithripala Sirisena indulged in a frantic thumping of chests by insisting that the President had steadfastly ‘intervened’ to remove that clause from the NHRAP. Indeed unwitting observers might have been forgiven for mistaking the innocuous NHRAP for a document that had actual force in law. This was aggravated moreover by reports that the proposal had been ‘rescinded’ by the President.
The truth is far from the case. The NHRAP pioneered by one Ministry or the other had long been a document of grand rhetoric and grander exhortations but with little practical impact. Under the Rajapaksa Presidency, the issuing of the NHRAP lapsed into sheer farce as its promises were immediately contradicted by flagrant violations of rights protections and the loss of independence of the judiciary and the police. It was a document to be jeered at rather than taken seriously.
As a pure matter of degree, the contradictions between principle and practice under the Unity Government are certainly not as blatant as they were under the Rajapaksas. However there is no reason to believe that this NHRAP is attended with the requisite degree of sincerity that should actually be evidenced.
Trying to win brownie points
In the first instance, some of the actors heading the sub-committees involved in the drafting of the NHRAP invited substantial doubts as to the legitimacy of the exercise. These were the very same individuals who had been directly responsible for covering up gross human rights abuses in the Rajapaksa era. It was on this ground that, as a matter of stubborn principle, this columnist declined an invitation to serve on one of these sub-committees.
But more to the point, the NHRAP remains the same as it was in the past. Simply put, it is a document of rhetorical expectations that has no binding force. Attempts to influence public perception and pass the document off as if it does are extremely mischievous, to say the least. To add insult to injury, use of the term ‘rescind’ in this context is simply inaccurate. Within the meaning of this term in plain English, this refers to the revocation, cancellation or repeal of a law, order, agreement or directive, which the NHRAP is certainly not.
The relevant process by which a state of emergency is declared and passed by Parliament is laid down in the Constitution and relevant subordinate laws and regulations. A simple Action Plan cannot pose an obstacle to that process. So when Ministers attempt to win brownie points for whichever side they are supporting in this Unity Government, they do their own side a serious disservice by noisily clamoring that the President ‘intervened’ to correct the situation. These misapprehensions feed into nationalistic agitation that we are better off without.
Unacceptable arguments as to ‘culture’
In other respects, objections have been raised in the Cabinet to the NHRAP’s proposal to decriminalize homosexuality on the basis of the Sri Lankan ‘culture.’ This is equally hysterical. For years, proposals to liberalise the law relating to abortion were held back on similar grounds. A 1995 Penal Code (Amendment) Bill seeking to de-criminalize termination of a pregnancy in the case of rape, incest and congenital abnormalities incompatible with life was withdrawn as a result. Abortions were legally permitted only to save the life of the mother.
This stubborn obstinacy generated by a (generally) all-male constituency meant that even where a woman was raped, she had no relief except to go to backstreet clinics at the risk of life. Now thankfully, Cabinet approval has been sought to effect law reform in this regard. In the meantime however, the damage done to the lives of thousands of women throughout the past decades has been irreparable. The ‘culture’ argument is therefore inimical to general principles relating to constitutional protections.
Why all this for international consumption?
But I return to the larger point which is fundamental. In the past, NHRAPs were indulged in purely to ‘appease’ the international community as it were. It is obvious that this is a primary motivation this time around as well. Indeed, the relevant Cabinet Memorandum preposterously frames the need for a NHRAP by referring to the EU GSP plus trade facility, foreign investment and the UN processes.
Essentially this is what the problem is all about. Quite apart from insisting on the integrity of those involved in the exercise, an Action Plan on matters as vital as improving human rights protections of a country’s citizens, should not be premised or put forward by the Government as an exercise for the consumption of external forces. This is a strategy that is dangerously misconceived. It paves the way for flamboyant propaganda attacking these efforts as part of a foreign conspiracy, as evidenced for example by recent reports that the NHRAP was being ‘rushed through’ to aid the EU GSP plus negotiations.
And these documents must be put before the people before it goes to the Cabinet of Ministers. Regardless of that imperative, there is a terrible compulsion towards secretive engagement that has clung to this administration like a proverbially bad odour. Quite apart from a counter-terror law being drafted in secret, it seems as if the innocuous NHRAP is also some mysterious document that must be veiled from public scrutiny for all intents and purposes. Indeed, the logic (or the absence thereof) in this extraordinary behaviour boggles the imagination.
Transparent and concrete actions needed
The first commitment of democratic rule should be to open and transparent discussions. Otherwise even good intentions may be converted to evil through restless and destructive propaganda. Truth then becomes the first casualty.
Even more importantly, this Government must evidence its commitment to the protection of ordinary Sri Lankans through concrete measures on the ground not through extravagant flourishes in Action Plans which are, in most cases, not worth the paper they are printed on. Yet it appears that it is not only the United National Party faction of the Unity Government which is blissfully living in cloud cuckoo land but the Peoples’ Alliance coalition partners as well.
This perilous flirting with the electoral mandate must stop forthwith.
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