• Latest int’l report finds age-old impediments to the Commission’s work alongside fresh ones that require an attitudinal paradigm shift 

Hamstrung by challenges of a bureaucratic nature in accessing funds and recruitments to address staffing shortages, the services rendered by the Human Rights Commission of Sri Lanka (HRCSL) – the country’s apex body in terms of the protection and promotion of human rights – is facing issues in their myriad related endeavours, among others, specifically in terms of proactiveness in probing incidents that go under the radar, their engagement with marginalised groups and vulnerable communities, and conducting follow-throughs on cases of alleged violations subsequent to prompt initial interventions.       

A recently issued report on national human rights institutions (NHRIs) in Asia sheds light on the HRCSL’s struggle with staffing shortages, which severely impact its ability to respond effectively to human rights violations. Interviews with human rights defenders reveal a concerning trend with the HRCSL demonstrating prompt actions on high profile cases, such as State sanctioned abductions and Police brutality, while the follow up on less publicised incidents leaves much to be desired. Furthermore, the absence of thematic subcommittees, particularly after the 2019 Easter Sunday terror attacks, highlights a concerning decline in engagement with marginalised groups. Additionally, the HRCSL's inability to ensure the implementation of its recommendations, coupled with a lack of real power to hold State actors accountable, raises fundamental questions about the HRCSL's effectiveness in protecting human rights in Sri Lanka.

The Asian Forum for Human Rights and Development (FORUM-ASIA), serving as the Secretariat of the Asian Non-Governmental Organisation Network on National Human Rights Institutions (ANNI), has prepared the said report on the performance of NHRIs. It presents a comprehensive evaluation of the performance of the HRCSL during the tumultuous period of 2021-2022, marked by the challenges of post-pandemic recovery and socio-political unrest. The report mentions the HRCSL's downgrade from status 'A' to 'B' by the Global Alliance of National Human Rights Institutions (GANHRI) due to concerns over its independence. Despite scoring well on certain independence-related indexes, the report underscores lingering issues such as the HRCSL's appointment process, budgetary constraints, and bureaucratic hurdles hampering its autonomy.

The report evaluates the performance of NHRIs in addressing and mitigating challenges across 13 countries including Sri Lanka during the reporting period of 2021-2022, a critical time of post-pandemic response and recovery, and economic, social and political turmoil in Sri Lanka. It is authored by ANNI member organisations from various countries in Asia.

It is indicated in the report that the HRCSL has issued 88 recommendations in 2021. Of these, 50% related to personal liberty, 26% to employment related matters, and 14% to school admissions. Additionally, the HRCSL initiated eight suo motu cases, primarily addressing issues of Police torture and abuse. The statistics for 2022 have not yet been compiled. The report further notes that the GANHRI conducted a special review of the HRCSL in October, 2021. This review followed appeals from members of the Sri Lankan civil society, who called for a reassessment of the HRCSL's grading. Consequently, the GANHRI downgraded the HRCSL's status from ‘A’ to ‘B’. The civil society's concerns were largely focused on the selection and appointment process of the HRCSL Commissioners following the passage of the 20th Amendment to the Constitution.

The report highlights that the HRCSL scored high marks in terms of independence under the relevant scoring index for 2021 and 2022. However, this does not indicate that the HRCSL is entirely independent. One significant issue affecting the HRCSL's independence, identified in the report, is that the appointment process for its members involves selection by the President. Moreover, although the HRCSL Act grants the HRCSL autonomy to conduct investigations without State interference, the State can still exert control by managing the HRCSL's budget. Sources within the HRCSL have indicated that budget cuts have occurred, thereby hampering the HRCSL's ability to carry out awareness programmes and projects. In 2021 and 2022, the HRCSL was informed that due to the State's bankruptcy, the Government could not support its educational programmes and projects. The report noted that this budgetary curtailment was not exclusive to the HRCSL but applied to all other State organisations.

According to the report, the HRCSL also faced challenges in accessing funds from external donors due to what the report claimed to be bureaucratic processes. Current procedures require that if no prior agreement for direct transfers exists, any external donor must first issue funds to the Treasury before they are released to the HRCSL. This process has caused significant delays, such as a European Union funded project that is over six months behind schedule. Another obstacle to the HRCSL's independence pointed out in the report is the requirement for approval from various State entities, such as the Department of Management Services under the Ministry of Finance, Economic Stabilisation, and National Policies, to hire staff. Directors have noted numerous vacancies, with some HRCSL regional offices indicated to be staffed by only two members. In terms of effectiveness, the report states that the HRCSL made several notable recommendations, including against the Police shooting of protesters in Rambukkana in April, 2022 (the incident of a group of protestors demanding fuel being shot at by the Police) following a suo motu inquiry, along with suo motu inquiries into several other incidents during the relevant period.

The report reveals that the HRCSL’s own reports typically include recommendations for remedial actions or compensation for victims. If these recommendations are not followed through as mandated by the HRCSL Act, it highlights that the HRCSL can report the non-implementation to the Parliament via the President. However, HRCSL sources have informed that this process has not been followed for many years. To address this, previous HRCSL Commissioners established a Non-Implementation Unit under the Inquiry and Investigation Department. This Unit is responsible for following up on recommendations and pressuring individuals or organisations to comply. While the Unit has been active since its inception, most civil society members and human rights defenders who have been interviewed during the process of preparing the report have expressed that the HRCSL lacks the authority to ensure that recommendations are implemented, despite the existence of the said Unit.

The civil and political rights cases that the HRCSL addressed in 2021 and 2022 have also been highlighted in the report. Notably, the HRCSL condemned the social media ban that disrupted the ‘aragalaya’ (a public movement seeking the resignation of the previous Government led by former President Gotabaya Rajapaksa) protest activities. “The HRCSL summoned the Telecommunications Regulatory Commission of Sri Lanka, the Inspector General of Police, the Secretary to the Defence Ministry, and the Secretary to the Mass Media Ministry to investigate the social media ban and the alleged assault on journalists and civilians during the Mirihana protest (a protest held in front of the private residence of Rajapaksa in March, 2022). As with the suo motu cases, the outcomes of these investigations remain pending.”

It is also stated in the report that engagement with marginalised groups was another area where the HRCSL received a low score on the relevant indexes. In 2016, the HRCSL established thematic subcommittees prioritising certain marginalised groups, including torture victims, women, lesbians, gays, bisexuals, and transgender, queer and questioning, intersex, and asexual communities and other communities with diverse sexual orientations, the elderly, persons with disabilities, migrant workers, and plantation workers. Each subcommittee was chaired by a Commissioner and consisted of civil society members who are experts in these specified areas. However, following the 2019 Easter Sunday attacks, the subcommittees rarely met and by March, 2020, they had become completely defunct, stated the report. “In 2022, the President of the Committee for Protecting the Rights of Prisoners (CPRP), attorney Senaka Perera alleged that prisoners were used to attack aragalaya protests on 9 May, 2022. Following an inquiry into these claims, the HRCSL released a statement titled ‘HRCSL condemns the false media broadcast made by the President of the CPRP’. This statement raised concerns among human rights defenders. The Sri Lankan Collective Against Torture emphasised that the HRCSL's statement ‘made many assertions and allegations that are detrimental to the safety and security of human rights defenders and the freedom of expression’.

The report mentions that a number of human rights defenders interviewed have stated that their engagement with the HRCSL has been both positive and frustrating. The HRCSL tends to prioritise issues requiring immediate attention, such as State sanctioned abductions of civilians and the Police torture of individuals in remand. “Once the individual is out of immediate danger, follow-ups by the HRCSL are often slow or even non-existent. For example, activist and journalist Tharindu Jayawardhana shared that when the State abducted ‘aragalaya’ protestor Eranga Pushpakumara while he was travelling by bus and his whereabouts were unknown, he (Jayawardhana) and a group of activists filed a complaint with the HRCSL. The HRCSL acted quickly to locate Eranga, ensuring his safety in remand. However, there were no follow-ups on this matter by the HRCSL, which Jayawardhana and other defenders attribute to the HRCSL being understaffed.”

“Others interviewed agreed that while the HRCSL is indeed understaffed, there is also a lack of interest or enthusiasm to assist victims. They noted that the HRCSL only acts promptly regarding high profile cases, such as incidents involving ‘aragalaya’ activists. Cases involving victims whose stories do not attract media interest do not receive the same attention. Reports from fact finding missions are published too late, as seen with the report on the Rambukkana shooting. The incident occurred on 19 April 2022, and the HRCSL recommendations were published exactly one year later. According to human rights defenders, the victims of the shooting are still unsure whether to file fundamental rights cases due to the delay. Almost all human rights defenders interviewed emphasised that the HRCSL lacks real power. Although the HRCSL can publish recommendations, State actors, such as the Police, cannot be forced to implement them. According to the HRCSL Act, in the case of the non-implementation of recommendations, the HRCSL can and must notify the President, who then takes the matter up in the Parliament. However, this step has not been occurring.”

As per the report, the human rights defenders have noted that it is unlikely that the President would even take up a complaint against State actors, such as the Police, who are acting under his own orders, to the Parliament. They added that another mechanism is necessary to ensure that the HRCSL recommendations are fulfilled.

One of the most significant events involving the HRCSL in 2021, as stated in the report, is the GANHRI downgrade of the HRCSL from status ‘A’ to ‘B’ due to its lack of independence. The HRCSL appealed to the GANHRI to reconsider the revised score; however, during GANHRI’s October, 2022 session, it was stated that the HRCSL had not provided sufficient evidence to indicate any attempts to improve its performance since the downgrade. Thus, the ‘B’ status remained unchanged. Human rights defenders who frequently engage with the HRCSL stated that the HRCSL is unable to function optimally mostly due to a lack of staff, but also because of its lack of independence and interest in investigating certain violations. Having adequate staff could ensure that victims receive attention even once they are out of immediate danger and that the HRCSL recommendations are published promptly.

Concluding its report, the ANNI has recommended in its report to the Government to ensure the independence of the HRCSL, to enable the HRCSL to take disciplinary actions against State officials who do not comply with recommendations issued by the HRCSL for no valid reason, to expedite approvals for the HRCSL to hire staff or amend the HRCSL Act to allow the HRCSL to hire staff, to introduce a legal provision to allow the HRCSL to hire without State approval when necessary, and to ensure the prompt release of funds for the HRCSL by the general Treasury. In addition, the HRCSL has been recommended to hire an adequate number of staff at the headquarters and regional offices, to ensure that urgent complaints are prioritised even if they are not high profile cases, to ensure that HRCSL recommendations are published promptly, to follow-up and assure the safety of victims, to restore the thematic subcommittees and  involve more civil society members by electing new members annually or biannually, to expand the thematic subcommittees to include economic rights, to engage with the public and State in more creative ways aside from lectures, and to publish timely annual reports and statistics.