June 16, 2006
Hon. Mahinda Samarasinghe
Minister for
Parliamentary Complex
Colombo 1
Sri Lanka
Dear Mr. Minister,
Having seen the report in the Daily Mirror of June 12, 2006 by Uditha Jayasinghe on the proposals made at the Inter- Ministerial Committees’ inaugural meeting, I wishfully think that Sri Lankans can take heart that you may take the initiative to improve the present suffering of the people from the drastic collapse of the rule of law.
Let this not be a pipe dream for all of us.?It is well known internationally and very much known and felt nationally, that the rule of law situation in the country is worsening day by day. As the Asian Human Rights Commission on many occasions has observed, Sri Lanka since becoming a Republic primarily had two stages of the collapse of the rule of law.?Firstly, by bringing in so called new ‘laws’ that do not conform to reasonable legal norms acceptable to any society based on the rule of law through the majority power in the parliament and hence, violating the governance of the rule of law. Secondly, as it happens now, by direct illegal orders of the Executive President.
The country is experiencing the horrendous impact of the first stage now. The police and the armed forces behave, as if they are a law unto to themselves. Violation of rights of the individual is fast becoming the rule rather than the exception, may it be in the village grocery or in the highest government office. The police show no interested in investigating complaints from the ordinary public other than in very grave crimes, which for the sake of their graveness the police cannot ignore. In the recent past, except in a few matters that were very heavily pushed for investigations for reasons such as the sensationality of the crime or the social standing of the victims, a very great lax in the investigation of crime is seen. The extent of the police disinterested in investigating ordinary crimes is such that when crimes such as house breaking and robbery are reported, the usual story said by the police to the complainants is to inform the police know if they know the culprits. A gradual collapse of the law enforcement agencies was seen in the last two decades which has brought down the rate of court convictions in criminal cases to four percent.?
Mr. Minister, we are somewhat fortunate if deterioration of the rule of law in Sri Lanka has only gone down as far as that. The true situation is rather exacerbated. It is not an uncommon with the Sri Lankan police to float false prosecutions against people whom they target by claiming drugs such as heroin or hand grenades were found in their possession. There is another trend in that the police take the easy path to report to court that the accused are unknown in most cases where they have not done proper investigations, or in cases in which they have other interests.?The police also carry out the practice of involving innocent persons with such cases and wash their hands of the investigation as if it is properly done. The Sri Lankan police regularly use these tactics and as a result innocent people are brought before court and they have to undergo untold humiliation, stress and financial misery. In the police stations torture is extensively used to extract confessions.?This is done due to lack of proper training. Torture prevents fair trial. The consequences do not end there. As for the society an unsolved crime remains and the culprits are at large. It is a criminal waste of court time and public funds by presenting false cases against innocent persons. The consequences of the misuse of legal power entrusted to law enforcing agencies are not limited to the few matters mentioned above. The whole system is eroding day by day. And if we continue to mess up like this very soon we are in for the day we have to look up in the sky and wail ‘what have we done in the past?’ Needless to say that long before the day will come, the high ranking politicians, judicial and public officers who made hay in the past will have to lament on behalf of themselves, their own children and perhaps grand children when the system is in total collapse.
Therefore Mr. Minister it is a virtuous decision you have made. Still, we have some reservations on the effectiveness of the reservations and we wish to point out the following observations on your proposals:
- The committees’ direction on law enforcement agencies to investigate and submit reports on alleged violations; we observe that a simple direction to investigate and report will not suffice. Even now namesake investigations are done. In the absence of tremendous external pressure on the law enforcement agencies, especially the police, when allegations point out to them, as it usually happen they do their best to muffle down the whole issue and quite often make up bogus allegations against the victims or involve victims with cases that are totally strange to them. In the recent past the only arm in the Sri Lankan police that did impartial investigations to a very great extent was the Special Investigations Unit. This too was when the former National Police Commission was in force and only after the police commission and other concerned organizations mounted tremendous pressure on the high ranking police officers, after some delay, the matters were referred to the SIU. Now, we have our fingers crossed how the SIU will function under the present police commission that is manned by arbitral political appointees. If the committee is truly desirous of curbing human rights violations in the hands of public authorities, especially the police and the armed forces ‘simply calling for reports’ will not do. We all know that in the Sri Lankan context calling for reports is a well-known sham. Therefore, if the committee is keen in curbing human rights violation in the hands of the police and armed forces it vital that you set up an independent and impartial body which is easily accessible by the victims and responds to the complaints with no delay whatsoever. It is pertinent in this context to refer to the public complaints procedure that was expected to be set up by the National Police Commission. This never became a reality as the superior officers, including the present Inspector General of Police frustrated it.
- The view held by most international organizations the national human rights organization, namely the Human Rights Commission of Sri Lanka is devoid of legal authority as it is an unconstitutionally appointed body. We are not certain whether you are serious in inviting the international community to deal with such an illegally constituted body.
- We are of the view that it quite prudent and also a need of the day to direct the IGP to report promptly on human rights violations by the police and the action taken by him on such violations in addition to your direction on him to submit reports on attacks on places of religious worship and individuals. We stress that you should insist that the IGP should take immediate steps to interdict the police officers who are indicted in torture cases.
- The reports of the UN Special Rapporteurs on Freedom of Religion or Belief and Extra- judicial, Summary or Arbitrary Executions are no doubt important. You should bear in mind that the reports of UN Human Rights Committee and the CAT Committee also have very grate significance. These reports are not very voluminous documents to make special studies of them. What is more important is to implement the recommendations in these reports. The delay to implement will render the recommendations useless. As a matter of fact you may verify how many past recommendations the government has implemented. At the same time we wish to remind you that it is very important to furnish the UN with correct and true information on human rights violations that have taken place in the country. In the recent past there were several instances where the members of the Sri Lankan delegation presented incorrect and untrue facts to the UN Human Rights Committee and CAT Committee. (One such?instance of falsification, was the undertaking given to CAT Committee last November, that the Commissioners for National Police Commission and Human Rights Commission will be appointed through the Constitutional Council (CC) and that CC itself will be appointed without delay.)?This will no doubt destroy the image and the credibility of the country.
- As the Minister for Human Rights you would realize the significance of the judiciary in upholding the rule of law and human rights. In the first place without any visible independence of the judiciary do you agree that it is not possible to uphold human rights? Mr. Minister what do you propose to do about this?
- The collapse of the policing system and eradication of torture are two very important matters you should seriously give mind to. Without a proper policing system and eradication of torture of civilians how can any country uphold its rule of law?
- Determination of the quantum of compensation payable to the victims on the directions of the UN Human Rights Committee is a matter to the government to decide and in no way a matter falling within the purview of the Human Rights Commission of Sri Lanka. On what legal basis can the Human Rights Commission of Sri Lanka have a right to determine the compensation payable to such persons? Especially now, where the Human Rights Commission of Sri Lanka is illegally constituted? Why is there a delay in passing a law of compensation to victims of crime and victims of gross abuse of human rights?
- Mr. Minister, Article 35 of the Sri Lankan Constitution which grants immunity to the Executive President for acts and omission, official or personal is one of the key obstructions to the independence of Judiciary, rule of law and protection of human rights. You should kindly let the country know your view on this matter and how you intend to remove this obstacle?
- You will I am sure agree that without resolving these fundamental problems of the rule of law it is not possible to find any genuine solution to the conflict in the north and east as the conflict is again turning more violent. It is time for anyone who has been given responsibility to deal with human rights affairs on behalf of the government to look into these issues and also the problems of security of everyone in the country including those living in the north and east.
Finally, we trust that your proposals are genuine and done with the best of intentions and not as a wrap up for the UN Human Rights Committee meeting on the 19th of this month.?
Thank You
Yours sincerely,
Samith De Silva
Senior Legal Adviser
Asian Human Rights Commission
