Sunday, July 17, 2016
As ‘fashionable’ as this may seem at the moment, truth-telling in Sri Lanka should not be confined to the Northern conflict, its victims and its perpetrators.
An essential link in the justice dilemma
Rather, this effort needs also to be applied to properly understanding the undermining and near-collapse of democratic institutions in the South during the past two decades. Indeed, the first and the second issues are closely intertwined. It is precisely because Southern national justice institutions failed so spectacularly that securing state accountability for victims of minority ethnicity in the North and the East became such a complex task. That link must be acknowledged for it is central to any justice process.
Rather, this effort needs also to be applied to properly understanding the undermining and near-collapse of democratic institutions in the South during the past two decades. Indeed, the first and the second issues are closely intertwined. It is precisely because Southern national justice institutions failed so spectacularly that securing state accountability for victims of minority ethnicity in the North and the East became such a complex task. That link must be acknowledged for it is central to any justice process.
In that regard, what we see now is certainly not reassuring. There is considerable skittishness displayed by this Government when it comes to fundamental core issues. And by this I do not simply mean reducing the matter to the bare question as to whether the justice mechanism to be established in regard to the Wanni war will be with the ‘participation’ of international judges or not. In fact, there is a singular danger of limiting our vision purely to that one question and thereby subscribing to a naïve view that the inclusion of internationals will be an automatic answer to Sri Lanka’s continuing justice dilemma. Experiences of other countries around the world dealing with similar such problems have shown us that this is not necessarily the case.
I also do not mean by this that the question of justice only concerns certain areas of the country. What should concern the more perceptive among us are wider questions relating to the basic integrity of the justice process in post 2015 Sri Lanka as applicable to all its citizens. Integral to this is the demand that the Government publicly acknowledge the severity of the crisis that confronts us instead of engaging in the same rhetoric that its predecessor did.
Indulging in the same denials
But there is little evidence of this. In its late 2015 report submitted to the United Nations Committee Against Torture under the country’s periodic reporting obligations, what we see are the old and tired defences. These offend the dignity not only of Tamils and Muslims affected by conflict but also of Sinhalese living in the South who continue to daily face the risk of torture by the police.
As in the past, there is an outright denial in this state party report that the practice of torture remains ‘widespread and unpunished.’ Some pitifully few (four in number) cases are cited to support this defence. There is a trumpeting of ‘directions’ issued by the state hierarchy to its agents to abstain from torture. The theory of constitutional and statutory guarantees is described at length.
But the specific question of prosecutorial policy where the Anti-Torture Act No. 22 of 1994 (CAT Act) is cannily avoided. The question is simple. What are the concrete facts that can be cited by the Department of the Attorney General regarding prosecutions under the CAT Act? In the early years following the enactment of this Act, (in theory) one of the best laws on tackling torture in the region, some political will was evidenced. But during the past two decades, there was an active abstaining from filing indictments under the Act. Has this practice of undermining the Act changed and if so, what are the statistics that can be cited in response thereof? These are the ‘hard’ questions that the Sri Lankan State must be called upon to answer. The Government needs to be put strictly on issue in regard to this matter. It must not be allowed to take refuge in mere waffling about directions and the law in theory.
A common record of state failures
Just last year, the United Nations Human Rights Committee (the Committee) established under the International Covenant on Civil and Political Rights considered an appeal filed by the dependants of Sunil Hemachandra, the lottery ticket winner who was taken into custody by the police following his claiming a substantial sum of money and then died inside the Moragahahena Police Station detention facility in 2003. Issuing a Communication of Views, the Committee examined the matter in detail.
In fact, the record reads like a common repeat of all such similar cases, in the South and in the North, broadly speaking. Here, the investigation had been carried out by the same members of the police force (from Moragahahena Police Station) as those implicated in the victim’s death. None of the officers involved in the alleged violation was suspended or reassigned pending the inquiry, and the case was not referred to the special investigation unit.
The judicial process was no better. The magistrates relied on the evidence collected by the police officers which lacked the requisite impartiality and independence. It is stated on record that the Attorney General refused to inquire into the matter, despite the express order to do so from the Magistrate of Horana. The dereliction of duty occurred at several levels. Despite the victim’s critical medical condition, characterized by uninterrupted bleeding, to which the detention authorities were alerted, the authorities failed to seek medical assistance for several hours.
The responsibility of the State
Meanwhile, the Supreme Court did not order any further investigative action, or a full separate investigation. Indeed, it took the Court seven years to rule on the fundamental rights petition filed in respect of this incident, finally concluding in August 2010 that the victim’s custodial death was not due to torture. In its Concluding Views therefore, the Committee found quite reasonably that the Sri Lankan State was responsible, either by act or omission, for failing to protect Sunil Hemachandra’s life, to properly investigate his death and take appropriate action against those found responsible.
So even as the furore about the 2006 Singarasa precedent is ignited afresh as was examined in these column spaces last week and the Prime Minister engages himself in potentially inflammatory referrals of judicial decisions to the Speaker of Parliament for rulings, there are other priorities in issue. His administration must demonstrate an actual commitment to reforming the State’s investigative and prosecutorial policies.
In the absence of this, one judicial precedent or another (bad in law or otherwise) and copious reports to the United Nations will matter very little.
