Date: September 22, 2009
Document id: ALRC-COS-12-09-2009
Speaker: Michael Anthony
HRC section: Item 4, General Debate
An Oral Statement to the 12th Session of the UN Human Rights Council from the Asian Legal Resource Centre (ALRC), a non-governmental organization in general consultative status
BURMA and SRI LANKA: Council required to take effective action to address human rights crises
Thank you Mr. President,
The Council is currently failing to effectively address human rights crises, for example those in Sri Lanka and Myanmar. This is not simply a failing of political will, but also one of approach.
In Sri Lanka, the continuing grave situation of IDPs is testimony to this. Furthermore, the recent sentencing to 20 years imprisonment of journalist J.S. Tissanayagam and the evasive statement by Sri Lanka’s Minister shows how a superficial approach by this Council is unlikely to breed success. The Minister claimed that the sentence was a result of due process and that separation of powers must be respected. However, under the Prevention of Terrorism Act under which this trial took place, the Constitution is being undermined and the Executive has managed to degrade and control the institutions of the rule of law to such a point that to speak of separation of powers and an independent judiciary is a falsehood. Given the end of the conflict in the country, the Act must be repealed. This draconian law is now totally unjustifiable and leading to arbitrary sentences, as in the case of Tissanayagam, who must be immediately released. The Act is being used by the government for political advantage, as an instrument to perpetuate its own power. A council armed with in-depth understanding of the systemic issues enabling abuse would not be so easily duped.
Similarly, concerning Myanmar, the Council is urged to arm itself with sufficient knowledge to move beyond a reactive approach in which it expresses dismay at high-profile injustices, but cannot take action that has a tangible impact and assists the prevention of further abuses. The ALRC urges the Council to condemn the evidently unjustifiable and arbitrary process of injustice concerning Aung San Suu Kyi and co-defendents and to call for their release as well as that of all other political prisoners. However, in ordinary criminal cases the ALRC has observed the same sorts of incorrectly applied charges, consistently broken procedure, lack of evidence and forced confessions and the Council must address these too, or simply feed a cycle of arrests and releases.
The judiciary is in its present form an appendage of executive authority. Unless its structurally and functionally subordinate position is addressed, it will continue to act as an instrument for the violation of rights rather than their defence. Under these circumstances, calls for the courts to decide cases fairly and in accordance with international standards are completely meaningless.
The deeply flawed 2008 Constitution further entrenches arrangements for abuses and any serious attempts by the international community to take up issues of concern to the people of Myanmar in the lead up to and after the anticipated election must respond to the peculiar variety of unconstitutional constitutionalism that it envisages.