W. R. Sanjeewa

W. R. SANJEEWA: When discussing National Human Rights Commissions, or NHRCs, the usual topics discussed are their mandates and powers, the resources made available to these institutions, whether commissioners should work full time or part time, etc. You seem to think that this approach is not adequate. Why?

BASIL FERNANDO: Because there are certain assumptions behind these questions and these assumptions may not be valid. These assumptions relate to the application of the Paris Principles, the basic framework that NHRCs are expected to follow.

SANJEEWA: Are you saying that the Paris Principles are not valid?

FERNANDO: Of course not. All that I am saying is that any legal principle has to operate within a legal framework. If the legal framework necessary for the operation of the Paris Principles does not exist in a particular country, these principles cannot operate as they would in a country where such a framework exists.

SANJEEWA: What is the legal framework necessary for the operation of the Paris Principles?

FERNANDO: It is the framework of the rule of law.

SANJEEWA: But most countries declare that they accept the framework of the rule of law.

FERNANDO: Between such declarations and reality, there is a world of difference. It must be possible to demonstrate practically that such a framework does, indeed, exist.

SANJEEWA: How can that be demonstrated?

FERNANDO: By looking at the justice system and how it operates. This very simply means the police, prosecution system and the judiciary. If the NHRC is established in a country where there is a reasonably functioning police force, prosecution system and judiciary, then the NHRC can do the things expected of it by the Paris Principles. If such a system does not exist, the NHRC cannot do what is expected of it.

SANJEEWA: You speak about reasonably functioning justice institutions. What is the importance of this qualification?

FERNANDO: I am not talking about perfectly functioning institutions. Some can say that there are many defects in the police in any country, and the same can be said of the prosecution system and the judiciary. However, such talk can divert our attention from very real differences. We can speak of justice systems in industrialised countries, for example. Certainly, they are not perfect. Sometimes there are instances when they are very bad, but, by and large, they may be said to be reasonably functioning. The distinction is with ones which are not reasonably functioning. Take the policing system of most Asian countries. The situation is really terrible. Take Cambodia, Indonesia, Pakistan, Sri Lanka, Bangladesh, Nepal, Myanmar and the like. Defects vary from a lack of organisational controls to corruption of a high degree to human rights abuses, such as torture, extrajudicial killings, the fabrication of cases and what not. People have a terrible distrust of the institution. Following from the failure of reasonable policing are the defects of prosecution systems and the judiciary.

We can take a different set of examples. Let us look at the justice systems in Malaysia and Singapore. These are relatively more affluent countries, but the whole system of justice is made subservient to the executive. There doesn¡¦t exist even a reasonable degree of accountability and transparency. Moreover, there also exists a draconian national security law in both countries.

A different situation again prevails in countries like China, Vietnam and Laos where even the theoretical concept of an independent justice system is not recognised.

In dealing with the application of the Paris Principles, if you treat justice systems as being the same as those in Canada, Denmark or even Hong Kong, then you are dealing with fiction and not with reality.

SANJEEWA: What are the implications of these various justice systems for NHRCs?

FERNANDO: Implications are in the area of the problems that will be brought before the NHRCs and the solutions that they will be able, or not be able, to provide. In a country where justice institutions are reasonably functioning, the type of problems that are likely to come before an NHRC are different than those in a country where the opposite situation exists. For example, in a place like Hong Kong, where one can say a reasonably functioning justice system exists, the institution deals with equality of opportunity in employment; but in a country like Sri Lanka, the issues are much different ¡X torture by the police, illegal detention and disappearances, for instance, come up. People in places like Sri Lanka also complain that the police do not take down complaints, the prosecution system is very underdeveloped and not fair and there are many defects in the judicial system, such as a lack of access, delays and all sorts of frustrations.

It is not only the problems that are different but also the possible solutions. In a country where the justice system is working reasonably well, the NHRC can rely on the institution of justice to support its operations. Habits that people have formed due to the better operation of institutions of the State help also when it comes to operations related to NHRCs. There will be greater cooperation between state agencies and NHRCs. This gives the credibility it needs to create the impression that the NHRC is capable of being effective. But take the opposite. When the justice system is ineffective, how can the NHRC provide a more effective redress? Every time a torture case or any other failure of the state agents is examined it means confrontation. Since the NHRC is too weak an institution in every respect, the NHRC cannot be the winner in such confrontations. It will have to adjust to the bad situation if it is not to have endless problems of its own. Such adjustments can take various forms: it may be mere demoralisation in realising that it is impossible to perform their function, or it may lead to corruption whereby the NHRC itself will become part of the bad justice system. It may be possible that with each NHRC there will be people representing both of these tendencies. The end result is that people will soon form an impression that the NHRC is either powerless or is part of the problem. Examples can be given for both of these experiences in Asia.

SANJEEWA: Does this mean that NHRCs have no functions in countries where the justice system is defective?

FERNANDO: No, it does not mean that. It only means that the NHRCs should not try to be a substitute for the institutions of justice. That is an impossible task. They can, however, be a part of the solution to that very problem. They can concentrate on advisory and educational roles and contribute to correcting the defects of the justice system. They can use the complaints they receive as the basis of their study of what the defects of the system are. Thus, their advisory role will not be one in which general and broad recommendations are made but one of well-studied recommendation-making based on real studies. They cannot only give such recommendations but also educate state officers and policymakers about such recommendations. They can also educate the public on the effective ways to improve the justice system. Through its communication with U.N. agencies and other international bodies, they can try to help the people involved in dealing with these issues understand the real situation. In this way, international collaboration will be a real one. Yes, they can be a very real part of the solution to the problems of the justice system.

SANJEEWA: Regarding international bodies, particularly those within the U.N. system, what can the NHRCs do?

FERNANDO: This also falls within their advisory and educational roles. Recommendations by U.N. rapporteurs, working groups and others can be the basis for quite a lot of changes. NHRCs can follow up these suggestions with the respective government institutions. They can constantly review the progress of the implementation of these recommendations. On the other hand, they can educate state officers about these recommendations. Often most people do not even know that recommendations exist. NHRCs can thus educate the public about these things. In short, NHRCs can prevent these recommendations from being ignored and forgotten as so often happens.

SANJEEWA: I¡¦d now like to shift the discussion a bit. Some NHRCs engage in inquiries and try to provide redress. Most of the time inquiries end in settlements. Is this a good thing?

FERNANDO: The provisions in the Paris Principles regarding settlements must be read in the light of the international covenants on human rights. The Paris Principles are not above these basic human rights principles. U.N. documents themselves are based on principles of jurisprudence which are well settled. The issue of settlements relates to the distinction between wrongs that are criminal in nature and those of a civil nature. A single act can have both elements. The essence of criminal liability is that the crime committed is an act against the State. A civil court that settles a matter cannot remove the criminal liability for the same offence. However, when settlements are made before an NHRC on issues like torture, which is a serious crime, the state party expects that the victim will not pursue the issue further. This is something even the victim cannot do. The State is free to pursue its investigations and to prosecute regardless of the settlement. Thus, theoretically, such settlements are futile.

In Sri Lanka, the NHRC settled one case of attempted murder with the payment of 5,000 rupees (about US) where a policeman twice threw a man into a river. The Prosecution of Torture Perpetrators Unit later investigated the case and filed charges for attempted murder. Further experience shows that a lot of pressure can be used to get victims to settle their claims. Thus, the very atmosphere of the NHRC settlement procedure can be one which is not conducive to a fair hearing and even gives an impression of being steeped in corruption. It must also be remembered that it is necessary to instill in law enforcement officers that gross human rights violations lead to serious consequences, and thus, they must avoid them This is a very difficult task which can be achieved only if there is firmness. NHRC settlements can thus be very counterproductive to the promotion and protection of human rights.

SANJEEWA: Sometimes it is said that if the victim does not have sufficient evidence it is better to get at least some money through a settlement.

FERNANDO: First of all, if there is no evidence, it is not very likely that a state officer will pay for a settlement case. What leads to a settlement most of the time is the fear of much worse punishment. However, a more important consideration is that it is not the victim who must gather evidence. NHRC officers must do the inquiries. If proper inquiries are conducted, it is not difficult to find evidence. However, NHRC officers often do not conduct detailed inquiries. There are many reasons for this deficiency. They are fearful of the police and other officers. These officers can create difficulties for NHRC officers. Often NHRCs do not have experienced investigation officers. If complaints increase, the staff may be insufficient in number to do all of the inquiries. It is much better for the NHRCs to work towards improvement of the investigating units of the State, which can make proper inquiries. It has made quite a difference in Sri Lanka to have the Torture Perpetrators Investigation Unit in the Attorney General¡¦s Dept. Many cases which would have been dismissed for lack of evidence are now before the courts. The basic issue that NHRCs must get state agencies to understand is that finding evidence is their job. It must not be put on the victim alone. Providing a helpless victim with no alternative but the acceptance of a little money is a pathetic thing.

SANJEEWA: Another issue is use of the media. Should NHRCs keep an open approach to the media?

FERNANDO: Here too there seems to be much confusion. If the NHRCs try to do work similar to the police, prosecutors and judiciary, then they also have obligations similar to these institutions. There has to be respect for all the parties involved. However, if the NHRCs are to concentrate on their advisory and educational roles, then they must have a proactive approach to the media. These are activities that can be done effectively only with the participation of as many people as possible. This type of participation cannot be obtained without extensive cooperation with the media. NHRCs can use their official position to gain access to media channels and keep the debate on justice issues alive. They can also educate the people in this way. In modern times, it is not possible to influence policy changes without extensive use of the media. Moreover, when engaged in such work, they do not have to abide by the restraints that exist for the judiciary, the police and prosecutors. To use such communication effectively, there is a need for competence in the media field. This is an aspect that the NHRCs must painstakingly acquire.

SANJEEWA: Are there developments other than NHRCs in the area of justice reforms?

FERNANDO: One such example is the 17th Amendment to the Constitution of Sri Lanka, which was passed in the year 2000. Through this amendment, several authorities were created which will have ultimate control of some of the state institutions. One such authority is the National Police Commission, or NPC. Now the NPC is very different to an NHRC. The NPC has complete power over the institution of the police. It has the authority to make all appointments, promotions, dismissals and disciplinary control. Thus, it has direct power over the institution of the police and can lay down the guidelines that all officers have to follow. Thus, the NPC has direct authority to implement its decisions. Its only limitation, if it can be called a limitation, is that in making its decisions it must respect the human rights of all people concerned. The NPC has the potential for effectively correcting the institution. NHRCs, by their very nature, do not have such a capacity.

SANJEEWA: One last question is about the money spent by the international community on NHRCs. It is said that huge sums are spent on these institutions. Do you think this expenditure is justified?

FERNANDO: Let us put the issue in a different way. One must presume that why such sums are spent is with the genuine wish to improve the human rights situation in each of the countries in which this money is spent. As we discussed earlier, in countries where there is a serious crisis in the justice institutions, human rights are not going to improve unless this is corrected. If the money spent on NHRCs is done with the purpose that the NHRC will play a significant role in reforms of the justice system, then the aim of the investment will be served. Otherwise, within a few years of the establishment of an NHRC in such countries where the justice system is seriously flawed, it will be perceived as ineffective, and the NHRC itself will be absorbed within the poor justice system. The people will not see the NHRC as a credible institution. Another aspect that is worth looking at is why do international agencies spend hardly any money in assisting reform of the police, prosecution system and judiciary? Surely, here is a situation of misplaced priorities, which may be due to the lack of an informed perspective on the link between improvement of the justice system and the improvement of human rights. To miss this point is to miss the most central issue relating to human rights where gross abuses of human rights routinely take place.