Rule of law at its lowest in Lanka
DM / 21Jan 2006
The rule of law in Sri Lanka is at its lowest ebb, the Asian Human Rights Commission (AHRC) has said in its first annual report of the Asian region. Titled the State of Human Rights in Ten Asian Nations: 2005, the 170-page report was released at a news briefing on Tuesday in Mongkok, Hong Kong.
"We can state unequivocally that across almost all of Asia the situation of human rights worsened in 2005," said Basil Fernando, executive director of the Hong Kong-based regional rights body. "The primary reason for this situation is the deep flaws in the institutions of justice and policing in these countries," he said. "Where the rule of law is broken down, there is no possibility to implement human rights standards. That is why we use implementation, not education, as the key measure for the success or failure of human rights in a given country," he added.
The ten countries covered extensively in the report were Sri Lanka, Thailand, India, Nepal, Bangladesh, Burma, the Philippines, Cambodia, South Korea and Indonesia.
Regarding Sri Lanka the report detailed the weaknesses of the policing, prosecution and judiciary of the country. The use of torture by police was considered endemic and structural and the common method of criminal investigation. The prosecution system as organised under the Attorney General was found to be extremely defective as manifested in human rights related cases including the Bindunuwewa massacre as well as the dismal conviction rate of 2-4% in criminal cases.
The Report also noted that the judiciary had come under heavy criticism from the UN Human Rights Committee especially in the Tony Fernando case and that the Bar Association—frustrated at the behaviour of certain judges—had finally called for a code of conduct for judges. Regarding the Supreme Court, the Report said that over the past year there had been a drastic reduction of fundamental rights cases and that the few cases heard in courts had been awarded paltry sums as compensation. It went on to say, that rather than a decrease in either credible reports on torture or the gruesome acts themselves, this trend reflected the Sri Lankan government’s low appraisal of the gravity of torture as well as its international obligations under UN treaties. The report also noted the extreme lack of judicial remedies within the court system and said the disgraceful delays in the justice system amounted to a betrayal of justice—exposing the victims and witnesses of abuse to mortal danger. The report detailed several such cases:
Lalith Rajapakse —arrested and brutally tortured by the Kandana police in April 2002. He was found unconscious at the police station by his grandfather and remained unconscious for 15 days at the National Hospital, Colombo. After the intervention of the UN Special Rapporteur on the question of Torture and others, indictment was filed before the Negombo High Court in July 2003. Since the case had been pending before court and the hearing has now been postponed to May 2006.
In May 2002, Mr. Rajapakse filed a fundamental rights application before the Supreme Court. It was noted that while the Sri Lankan constitution required FR applications to be dealt with promptly, almost 4 years on, this case is still pending and will only be taken up after the High Court case is finally adjudicated—a delay of a further 2-3 years. The reason for the FR application pending the High Court verdict was a judgment made by the Supreme Court that said, the FR petition at the Supreme Court while the case is pending at the HC may prejudice the lower court trial. Thus a delay in the High Court process will inevitably affect the Supreme Court hearings.
Chamila Bandara —whom the Ankumbura police tortured so brutally that he lost the function of both his arms, filed his FR application before the Supreme Court in July 2003. The case proceeded before court until November 2005, but then the Supreme Court decided to postpone hearings until the end of the high court trial—which has yet to even begin.
The situation regarding other cases was little different:
“Rita”— allegedly raped in August 2001 at age 16. The investigation only began at the instigation of various human rights groups. A case bearing No 32151 was filed at the Magistrate’s Court, Nuwara Eliya and evidence recorded. On October 2002 the case was committed to the High Court for trial and the file was sent to the AG. To date, the victim has heard nothing further about the case.
“Yamuna”—a mere 13 years old at the time of her alleged rape in September 2002. After the police conducted an initial investigation a case was filed in the MC, Kandy bearing No 25248. This case is still pending before the MC. It is not possible to predict when the MC non-summary proceedings will end. However, once it has ended it will be sent to the AG for the filing of the indictment. Going by earlier cases the victim can expect to wait at least three more years before the indictment is prepared and sent to the High Court. At the High Court, it will possibly take a further 3-5 years for judgment. If the case is appealed, which is most likely, there can be expected to be a further 3-5 years before the final judgment. During that time Yamuna may experience the same problems aforementioned.
The report said that unless the issue of delays in trials is addressed, it is not possible to avoid the increase in crimes and people taking the law into their own hands—both of which are currently happening. It said that by overlooking this situation the government has confined its involvement on this issue to mere rhetoric.
Sri Lanka’s new President in his opening address to Parliament had said, that reforms to the criminal justice system would be considered. But he had made little mention about delays in justice. Human rights groups thus feared that these reforms might involve the enactment of more draconian laws resulting in further deterioration of the criminal justice system.
The Report also noted that though the government delegation to the UN Committee Against Torture, Geneva informed the Committee that measures are being contemplated to address these delays, there was no evidence to substantiate the claim. And there was no indication that the government was seriously attempting to deal with this fundamental flaw in the country’s justice system, which has paralyzed criminal justice in particular.
In fact, the general attitude of the Sri Lankan government towards the recommendations of the UN treaty bodies was that of careless disregard and cynical dismissal. While both the Human Rights Committee and the Committee against Torture have considered Sri Lanka under special procedures and have called for reports on the implementation of their recommendations within a year, which has already elapsed, it is not known whether the government has submitted or is working to submit the reports.
Therefore the Report suggested that a start be made towards realisation of people’s basic rights by implementing the recommendations of the UN Human Rights Committee and the Committee against Torture for example, for the members of the Constitutional Council to be immediately appointed, which will in turn enable Commissioners for important public authorities such as the National Police Commission to be appointed.
The briefing was concluded by Basil Fernando pointing to an illustration of a judge's wig on a rubbish bin. "This cartoon depicts the situation of justice in Sri Lanka today," he said. "When the entire country knows that our judicial system is rubbish the idea of enforcement of human rights standards is rather ridiculous."