HRCSL Seeks Greater Powers

• Proposed amendments include right to hold national probe

By Waruni Karunarathne-Sunday, December 29, 2013

The Human Rights Commission of Sri Lanka (HRCSL) has sought greater powers including the right to hold National Inquiries in a proposed amendment to the Human Rights Act submitted to President Mahinda Rajapaksa.

Speaking to The Sunday Leader, HRCSL Commissioner Dr Prathiba Mahanamahewa said the draft was approved by the Board of the Human Rights Commission of Sri Lanka that consists of five members.

“The proposal has already been taken up in Parliament during the budget proceedings. In general, this has to go through a Line Ministry. Since we do not have a Line Ministry for the Human Rights Commission of Sri Lanka, the proposal has to go through the Presidential Secretariat,” Mahanamahewa said.

In the amendments, the Commission has included several new subsections and it has also renamed and rephrased several other sections.

The five new subsections include one which seeks approval for the Commission to make special fact findings, and/or hold national inquiries in relation to any matter with a public and/or national interest, systematic and/or gross human rights violation, weak and vulnerable groups that need special attention, the protection of women, children, elders, disabled, migrant workers, internally displaced persons or any such group that may be identified upon such a complaint made or an issue identified under section 14 of the Act.

Other new subsections include the Human Rights Commission making interim recommendations, as it may think fit, to the appropriate authority or person or persons concerned with a view to preventing the continuation of such infringement until a final determination is made by the Commission.

After receiving a final determination by the Commission, any authority or persons to whom such recommendation under the preceding provisions is addressed fails to comply with such recommendation within the stipulated period, the Commission shall submit a certificate to the Court of Appeal or Provincial High Court, as appropriate in the circumstances, for the purpose of implementing such recommendation.

In special circumstances identified by the Commission, the Human Rights Commission wants powers to issue summons upon any person named therein, and, if such person without any valid reason fails to attend the proceedings of the Commission, the Chairman of the Commission shall issue a warrant under his hand to ensure such attendance. Such warrant shall be final and conclusive, and such person would be liable to be dealt with, under the Act.
The Human Rights Commission of Sri Lanka has also sought to include additional clauses to some parts of the Act.

This includes:

1.  To intervene in any proceedings relating to the infringement or imminent infringement of fundamental rights or human rights pending before any court with the permission of such court or if referred by such court;

2.  Without any distinction, monitor the welfare of persons detained either by a judicial order or otherwise, including persons in detention in prison or elsewhere under Prevention of Terrorism (Temporary Special Provisions) Act, No. 48 of 1979 or regulations made under the Public Security Ordinance (Chapter 40), or in any other circumstances, by regular inspection of their places of detention, and to furnish quarterly reports with recommendations;

3.  Where upon an investigation and/or inquiry conducted by the Commission under section 14 the infringement or imminent infringement of a fundamental right by executive or administrative action or by any person referred to in paragraph (b) of section 14 is disclosed, the Commission shall have the power to refer the matter, where appropriate, for conciliation or mediation.
4.  Subject to rules as may be prescribed, to admit notwithstanding the provisions of the Evidence Ordinance to admit any evidence, whether written or oral, which might be inadmissible in civil or criminal proceedings, provided that such evidence could reasonably ensure justice;

5.  Where a person is arrested or detained under the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 or a regulation made under the Public Security ordinance, (Chapter 10), or in any other circumstances, it shall be the duty of the person making such arrest or order of detention, as the case may be, to forthwith inform the Commission of such arrest or detention, inform the Commission of such arrest or detention as the case may be and the place at which the person so arrested or detained is being held in custody or detention. Where a person so held in custody or detention is released or transferred to another place of detention, it shall be the duty of the person making the order for such release or transfer, as the case may be, to inform the Commission of such release or transfer, as the case may be, and in the case of a transfer, to inform the Commission of the location of the new place of detention forthwith.

6.  Any person on whom a duty is imposed by subsection (1), and who willfully omits to inform the Commission as required by subsection (1), or who resists or obstructs an officer authorized under subsection (1) in the exercise by that officer of the powers conferred on him by that subsection, shall be guilty of an offence and shall on conviction after summary trial by a Magistrate, be liable to imprisonment for a period not exceeding one year or to a fine not exceeding twenty five thousand rupees, or to both such fine and imprisonment.

The Commission has also sought to submit an annual report within the first quarter of every year to Parliament, which shall also be posted on the website of the Commission documenting the action taken in the discharge of its duties, setting out all its activities during the year to which the report relates, including a list of all matters referred to it, and the action taken in respect of them along with the recommendations of the Commission in respect of each matter.

If approved, the Commission will also, whenever it considers it necessary to do so, submit periodic or special reports to Parliament in respect of any particular matter or matters referred to it, and the action taken in respect of the status of human rights in Sri Lanka during the preceding year and information relating to any research conducted by the Commission and its findings.

The Commission also seeks regulations for the purpose of carrying out or giving effect to the principles and provisions of the Act, or in respect of any matter which is required by the Act to be prescribed, or in respect of which regulations are required to be made.
Another amendment sought by the Commission is that it make regulations prescribing the procedure to be followed in the conduct of investigations under the Act, every regulation made by the Commission be published in the Gazette and come into operation on the date of such publication, or on such later date as may be specified in the regulation.

Dr Mahanamahewa said that it took nearly one year for the Commission to draft the proposed amendments and it was done after consulting members of the civil society, the Attorney General and all the stakeholders. He emphasized that, if the proposal is accepted, the Commission would be able to give greater protection to people and would be able to expedite the procedures to solve the cases.
He added that even though the duties of public servants are being stated in Article 4(d) of the 1978 Constitution as to promote, respect and protect human rights, it is not often being practiced and through the proposed amendments to the Human Rights Act, the moral obligation would be made a legal obligation enabling a better environment to protect human rights in the country.