Dear Mr. De Silva,
I am writing this letter in response to newspaper reports concerning a speech that you have made on the right to life, where you claimed that there are improvements in the field of human rights.
Unfortunately, I have not had the benefit of seeing your complete speech. However, I have no reason to believe that the newspaper reports have misquoted you. For the purpose of this open letter, the only question I wish to raise with you is whether there can be improvements in the field of human rights without there being improvements in the administration of justice. As Solicitor General, whose field of competence belongs more to the field of the administration of justice, are you claiming that there is improvement in the administration of justice in Sri Lanka? I have not come across any person in recent decades making such a claim. On the contrary, I have met many people and seen and read much in the print and other media that tell of the degeneration of the administration of justice in the country.
For the purpose of this discussion, I wish to limit us to one issue: the delays in the administration of justice, which are the measure by which every litigant in the country will measure whether there is an improvement of the administration of justice, or, whether we are slipping towards a lawless society.
I wish provide you with a few examples from cases which have already been brought to the notice of all relevant government agencies on many occasions, in order to illustrate:
The case of Rita This case bears No. 32151 of the Magistrates Court of Nuwara Eliya and was committed to the High Court in 2002. The case concerns a 14 year-old girl, who alleged that she was raped. After recording evidence, the Magistrate was satisfied that there is a prima facie case to be placed before the High Court. To date, the young victim has not received a summons to appear before court for this case. Despite many attempts made on her behalf to find out what is happening with the case, no one really knows what the situation is. So this young girl has to grow up waiting for her trial to take place at some undefined time in the future.
The case of Yamuna This case bears No. NS 25248 at the Magistrates court of Kandy. The alleged rape took place on September 2, 2002. The non-summary inquiry into this case is still pending. Again, the case concerns a very young girl and she too has to grow up, not only with the trauma of having been raped, but also with the uncertainty of when her trial in the court will end. Young people have a right to grow up without the constant burden of such problems and in the knowledge that justice has been done.
The Case of Anushka The case bears No. B 40152 of the Magistrates Court of Kandy It concerns another case of the rape of a young girl, in fact gang rape,which is alleged to have taken place in July, 2003. The non-summary inquiry has not even begun. This young girl also faces long years of uncertainty and shame before she will ever see any justice being done.
The case of Inoka The Case bears No. B 37112 at the Kandy Magistrates Court. The alleged rape of this young girl took on April 7, 2002 and the non-summary has not even begun.
These are just a few cases. You are, of course, aware of many more. I need not remind you that rape is among the worst crimes, and the rape of such very young girls offends the conscience of any society. However, when it comes to justice, these young persons have been utterly neglected. No one from the state has cared to explain to them what is happening to their cases and how the state is ensuring their right to effective redress. In fact, the state has not even met its obligation to protect these persons. All four have had to live away from their homes due to the social reactions that follow such incidents. Their only recourse has been through the human rights groups that have provided them with alternative shelter and attempt to help them to rebuild their lives.
Human rights are about state obligations to protect persons from violations. The state is to protect rights through its justice system: the police, which is supposed to investigate crimes; the prosecution, which brings these cases before the courts, and the judiciary, which finally adjudicates cases. Where this system fails, human rights have very little meaning to the people in the country.
You have mentioned the ratification of about 60 conventions. However, ratification without implementation is only paper work. As you know, in all conventions there is a specific section (usually article 2 of each convention), which obligates the state party to take all necessary legislative, judicial and administrative measures, to ensure that the people enjoy the rights in question. Where there is failure in that regard, the ratifying nation violates one of its basic obligations. On reviewing Sri Lankas performance, UN treaty bodies have made many recommendations for specific improvements. For example the Human Rights Committee made several recommendations in November 2003; however, none of the significant recommendations have been complied with. The Committee Against Torture made a series of recommendations in November 2005, which are, in fact, essentially the same recommendations as those made by the Human Rights Committee.
May I also remind you about another case concerning which the UN Human Rights Committee has stated that the Sri Lankan government has violated the rights of a young man as the result of undue delays in the administration of justice. This is the case of Lalith Rajapakse, bearing Communication No. 1250/2004: Sri Lanka, No. SCFR 267/2002 and No. 259/2003 of the Negombo High Court. On March 8, 2005, the UN Human Rights Committee stated that:
.the committee finds that the delay in the disposal of the Supreme Court case and the criminal case amounts to an unreasonable prolonged delay within the meaning of article 5, Para 2 (b), of the Optional Protocol.
Even after this decision, the cases before the Supreme Court and the Negombo High Court are still pending. The next date in the Negombo High Court concerning the case will only take place on May 4, 2006. The Human Rights Committees finding concerning this case, can also be applied to the large numbers of cases pending in Sri Lankan courts, which fall within an unreasonable prolonged delay within the meaning of article 5, Para 2 (b), of the optional protocol.
Where then are these improvements of rights taking place? Many people who have read the newspaper reports of your speech would like to have an answer to that question.
Yours sincerely,
Basil Fernando
Executive Director
