SRI LANKA: The Privileging of impunity in Sri Lanka’s prosecutorial process and legal system 

This article was initially published in LST Review- Vol.306 and 307 in May 2013

1. Introductory Remarks

“We have every reason to be proud of the fact that our judicial system has been adopted in so many different parts of the world. At the heart of it is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence. Without these ingredients, the wearing of wigs, the humble submissions and the quoting of House of Lords authorities become a meaningless parade of archaic customs and costumes.”
Sir John Mortimer QC[1]

The late British barrister Sir John Mortimer was regarded as a legendary lawyer. The BBC made a series of documentary films on his cases[2]. He was also retained for cases in the former British colonies. The above mentioned quote was written on the basis of that experience. As he pointed out ‘At the heart of it is fairness to everyone who holds views with which the government doesn’t agree, and judicial independence.’ When these two elements are absent, a rule of law system as envisaged in the Common Law tradition cannot survive.

2. Remembering the two ‘Golden Rules’

In Sri Lanka, the first element – that is, fairness to everyone who holds views with which the government does not agree – existed to a much a lesser degree from the very inception. Fairness to everyone who holds a view with which the government does not agree was achieved in the United Kingdom after centuries of struggles against the monarchy amidst many sacrifices by way of the blood of citizens of that country. The British, as colonial rulers, could not introduce this principle in its fullness in their colonies as that would have threatened their own rule. Demonstrating fairness to everyone who holds views with which the government did not agree could not go together. Thus, a defect present at the very birth has remained part of the limitations of Sri Lanka’s justice systems and legal processes. These defects remain even after independence, to a much greater degree.

Thus, holding views with which the government did not agree became gradually more problematic during the period of independence. With the operation of the 1972 and 1978 Constitutions, the right to hold views disagreeable to the government became restricted. Now Sri Lanka has arrived at a point where holding an expression of a view disagreeable to the government has become a risky affair. As this issue is well documented, with statistics of persons who have been killed or otherwise subjected to serious reprisals for holding views opposed to the government and lists of those who have to gone into exile, it is not necessary to go into those details in this short paper. Suffice it to say that one of the two golden rules stated above andone of the two conditions required for a functional rule of law system as stated by Sir John Mortimer exists only to a very limited degree in Sri Lanka.

Regarding the other golden rule enshrining the independence of the judiciary, the manner in which the independence of judiciary has been gradually undermined in Sri Lanka has been previously examined in detail. [3] Since that analysis, even the limited independence that existed earlier has been drastically attacked. The arbitrary removal of Chief Justice Dr. Shirani Bandaranayake[4]has put into question as how much of this independence is left. In the course of this removal, a Writ of Certiorari issued by the Court of Appeal which quashed the findings of the Parliamentary Select Committee (PSC), was ignored by the government[5]. The issued writ was based on an authoritative interpretation by the Supreme Court of the constitutional provision relating to the removal of the Chief Justice in Sri Lanka[6]. By implication, the government also ignored this interpretation.

It has been contended that within the common law tradition, it is not possible for a court to issue a writ on parliament or a parliamentary select committee.[7] Yet this view is clearly unfounded.[8] For the purpose of this article it is sufficient to state that the Indian Supreme Court has held in several judgments that it is within the jurisdiction of the Court to issue writs on parliament or a parliamentary committee, when the Court is of the view that the parliament or a parliamentary committee has acted in violation of the Constitution[9]. The Indian Court has proceeded on the view that it is the Constitution that is the supreme law and the power of the parliament is subordinate to the Constitution. The Constitution needs to be interpreted in the light of the basic principles, such as the rule of law and the independence of the judiciary. No parliament or parliamentary select committee can act in a manner that could in any sense undermine these principles. If these principles are displaced, the entire foundation of the legal system built under the overall framework of the common law is destroyed.

The consequent result would be the displacement of the basic notions of the rule of law and the independence of judiciary.. The common law tradition on which a country’s legal system is based would consequently be displaced. The system will become unwieldy. Thereafter, what would become of all the judicial precedents developed through over a century of judgments by the courts would be anybody’s guess. The ‘system’ would be lost.

3. Looking at the Prosecutor’s Role

When considering the issue of prosecutions, it is not possible to ignore the transformation that has taken place in Sri Lanka on the prosecutor’s role. A pertinent question is as to whether the Attorney General’s role in Sri Lanka still conforms to the status and the role of an Attorney General within the common law tradition. Today, the Attorney General’s Department is functioning under the Presidential Secretariat. When the office of the Attorney General originally evolved in terms of the British tradition, the office was meant to be independent. On the one hand on matters of law, the role of the Attorney General was to advise the government on what the law is relating to a given situation. Today, the Attorney General must bend to whatever the government decides what the law should be. No Attorney General who gives an opinion contrary to what the regime expects is likely to survive.

The Attorney General’s other role is to be the prosecutor on behalf of the state. This means that the prosecutor must, without bias, prosecute anyone guiding only by the law. However, prosecuting for political purposes has now become an accepted pattern. The prosecution of journalist, J.S. Tissainayagam, was clearly a political persecution rather than a legitimate prosecution. Several prosecutions launched against Sri Lanka’s Army Commander Sarath Fonseka also belonged in that same category. Meanwhile, political bias is shown in the non-prosecution of cases which under normal circumstances, should have been prosecuted if the Attorney General’s Department acted only on the basis of the law. The list of such non-prosecutions is long and has been exhaustively recorded in the public domain.

Moreover, a fundamental notion guiding all trials and inquiries is that all persons are equal before the law. This position is also enshrined in Article 14 (1) of the International Covenant on Civil and Political Rights. However, in recent times the Attorney General has enjoyed a position that is unequal to positions of lawyers appearing in cases, particularly when counsel representing the Attorney General is allowed to ‘give evidence from the Bar Table’. When applications such as fundamental rights cases are brought about by way of papers filed by Petitioners, officers from the Attorney General’s Department appear in court and make submissions orally without submitting any papers relating to the facts of the case. This is disturbing trend regarding the Attorney General’s role in the courts as evidenced anecdotally and which is of common knowledge to legal practitioners.

Usually the essence of such submissions is the denial of the positions of the Petitioners filed by way of their petitions. Thereafter, the petitions are often dismissed merely on the basis of the submissions of state counsel which amount, in fact, to giving evidence from the Bar Table. Some documents are shown by state counsel to the courts without filing them on record. The phrase, “only for the eyes of the court” is used. These documents are not shown even to the counsel appearing for the Petitioner. Such documents are taken as ‘evidence’ and decisions are made on that basis.

As one senior counsel reported in a recent discussion with me, he had appeared in a case where the petitioner had relied on the fact that she had received the highest marks in a job interview but, however, someone else was selected for the job. The counsel appearing for the Attorney General showed a document to the court without revealing the contents to the counsel for the petitioner and the case was dismissed. The counsel for the petitioner then asked for the document shown to the court which clearly indicated that the original content of the document had been altered. As the document was not shown to the counsel at the same time that it was shown to the Court, he was in no position to take any objection. Clearly the treatment of the lawyers for the Attorney General’s Department in any favourable position as compared to other counsel in allowing them to ‘give evidence from the Bar Table.’

4. A Few Important Questions Regarding Impunity

There are some well-entrenched practices that violate rights in Sri Lanka and which govern the culture of impunity.

1. a. The practice of killing after arrest: Particularly following the 1

^st

1.  Southern uprising of the Janatha Vimukthi Peramuna (JVP) in 1971, persons have been killed after arrest on a large scale. The number in 1971 was counted at around 10,000. In the counterinsurgency measures taken by the state dring the 2

^nd

 JVP uprising in 1987 – 1991, again at least 20,000 people were killed after arrest. These are normally referred to as forced disappearances. In the North and East, from the late 1970s up to 2009, the number of persons who were killed after arrest has never been estimated.

b. Killing people after arrest is a heinous crime. However, in Sri Lanka, this has become an excusable practice in dealing with alleged insurgents. There is also an implied assumption that it is not always possible to distinguish between people who are insurgents and people who are not, and if some persons who are innocent have also been killed after arrest, then that too is excusable. Gradually, killing after arrest has also been ‘approved’ of in relation to persons who are labelled as serious criminals. However, there have been allegations that several persons who do not have any criminal record have been included in this category. Perhaps the highest indictment against the Sri Lankan state is this practice of killings after arrest. Even up to date, there has not been any attempt by the judiciary, the Human Rights Commission of Sri Lanka or any other authority to take this matter seriously. Perhaps the weakness of the Sri Lankan state is most manifest in this failure.

c. ‘Approved killings’ by soldiers or paramilitary using live ammunition on persons participating in protests and demonstrations: Several killings of this nature have come to light in recent times, including the three persons killed at Rathupaswala, Weliweriya, of whom two were teenage boys. On this matter, too, there has been no serious attempt by state authorities to either investigate or take preventative measures for the future. At the moment, this remains an ‘approved’ practice and such practices of using live ammunition as a method of crowd control will probably also take place in the future.

d. Magisterial orders which readily accept the police reports relating to custodial killings, thus preventing proper inquiries into what are most likely to be murders, are also another aspect of this problem. We are used to hearing unbelievable explanations by the police that a person who is custody and has been handcuffed by policemen who are armed, has tried to attack the policemen and therefore was shot dead. These lies are often repeated at magisterial inquiries without further inquiry. This has become encouragement for further killings.

e. Prolonged detention: Large numbers of persons, particularly from the North and East, have been kept under prolonged detention and no authority seems to take that matter as anything of great importance. Thus, this practice, too, continues as an ‘approved’ practice.

f. Persons who are arrested are almost always tortured. This matter has been thoroughly documented and many reports have been made. And yet, the practice continues unabated. Such large-scale practice of torture and ill-treatment can only occur because the government and higher authorities in the police encourage the continuance of these practices. It is not in the nature of the state that the actual causes for this widespread practice should be searched for. Rather, these heinous practices are encouraged.

g. The use of state media in a criminally provocative manner against citizens who have different views from the government has now become a routine practice: Such happenings could not take place without the direct approval of the highest authorities. The state media is used in a slanderously propagandist manner contrary to basic rule of media ethics. Besides the adverse effects that such practices have on the political and legal systems, the country’s language and culture is also adversely affected. The effect that such media behaviour has on the psychology of young people is particularly troublesome.

The above list is not meant to be exhaustive on all human rights issues but it is there to clearly set out some of the glaring violations of the state, which are often left out of discussions.

5. Mere Façade of a Functioning Legal System

It is in the light of the above discussion that words like ‘impunity’ and ‘prosecution’ and other basic legal terms that constitute the legal jargon of Sri Lanka should be viewed. If the two golden rules mentioned by Sri John Mortimer are absent, what would remain as a legal system is a mere facade. Addressing judges as ‘My Lords’ and ‘My Ladies’, quoting from previous judgments and putting on all kinds of dresses and mannerisms that give an impression of the existence of tradition cannot, as Sir Mortimer has pointed out, create a system of justice.

In a previous publication, The Phantom Limb: Failing judicial systems, torture and human rights work in Sri Lanka[10], the gradual collapse of the rule of law system and the prevalence of mental habits that survive such collapse and retain the belief in an imagined system while confusing it for a real functioning system was documented. Medical doctors have observed that a person who has undergone the amputation of a limb may still believe that the limb still exists. The patients, for example, would complain of pain in a hand that is no longer physically attached to them. The doctors had to devise methods of pretending treatment on the non-existent limb so as to mentally satisfy their patients. This is called the Phantom Limb Syndrome[11]. A similar approach is adopted by litigants, lawyers and even judges who make themselves believe that they are still working in a rule of law system when the system has, in fact, ceased to exist.

The recent intensification of the breakdown of the rule of law is exemplified in the continuing violations of rights of expression and religion of Sri Lanka;s minorities, the political terrorizing of entire villages in the South, the gang-rapes of small children by local level politicians. These incidents form a pattern which should be adequately reflected on from the point of view of the existence or non-existence of a legal system in Sri Lanka. It is essential to do such studies now in order to arrive at a sensible understanding of what has taken place in Sri Lanka.

A recent book entitled Narrative of Justice in Sri Lanka: told through stories of torture victims[12] reports on four hundred cases of police torture and contains graphic details on how torture takes place, what happens when complaints are made and what happens in the courts relating to these matters. The book provides valuable empirical evidence of what justice has begun to mean in Sri Lanka. Other reflections by lawyers have made valuable contributions to understanding what has become of practices within the courts today. [13]The detailed information made available in the book should be seriously studied by any person who is interested in finding an answer to the question as to what is the kind of legal system that currently exists in Sri Lanka.

6. Litigation without the Rule of Law

Litigation can still continue even after the collapse of a rule of law system and even when the possibility of justice no longer exists.

Such systems are found in countries where the existence of a military regime over a long period of time has displaced the previous legal system. Indonesia during the period of Suharto is an example of this. The façade of courts and litigation before such courts continued despite the fact that the courts were unable to give any judgment that was not approved by the military regime. One consequence of this situation was extreme forms of corruption that spread through such courts. Another example is Cambodia, where, due to the ‘revolution’ attempted by Pol Pot (1975-1979) the entire economic and social structure collapsed. All the intelligentsia, including former judges, lawyers and others who knew of the legal system, either perished or fled into refugee camps or to foreign countries. When the recovery process started, Vietnamese experts tried to fix various aspects of the society, including the court system. Persons without any formal education were appointed as ‘judges’ and presided over the ‘courts’. However, the actual purpose of the courts was to create legitimacy for the actions of the new regime. A similar situation also developed between the periods of 1962 to 1988 in Myanmar/Burma under the dictatorship of General U Ne Win. This system continues with little modification up to date.[14]

The most dramatic example of the transformation of a legal system was in Russia under the regime of Joseph Stalin. Stalin’s prosecutor, Andrey Januarevich Vyshinsky, designed the legal system to protect the state against the citizens. Instead of the liberal democratic idea that the role of the courts was to protect the individual against the arbitrary actions of the state, in this new Stalinist system – which came to be known as the Soviet system of jurisprudence – the duty of the courts was to safeguard the executive.

In all these transformations, the common factor is the loss of the supremacy of the law and the replacement of the law with the supremacy of the executive. Naturally, there is no actual recognition of the separation of powers within such a system, despite the maintenance of the façade that the courts are independent. Under such a system, the prosecutor’s role is to defend the state. The rights of the individual are of no concern to the prosecutor. The judges can only survive to the extent that they are loyal to the executive. In Sri Lanka, the struggle for the protection of the court system as an independent system can only happen through undoing the process of the displacement of the rule of law. This implies breaking the linkage between the executive and the judiciary. That could only happen through a political process which will end authoritarianism. In that regard, the following suggestions are relevant for a thorough overhaul of the Sri Lankan investigative, prosecutorial and legal system.[15]

1. 1. When an FR application is supported for Leave to Proceed and the Respondents have not yet filed any objections, none of the Respondents (which includes the Attorney General) should, at that stage of the case, be permitted to make submissions controverting the facts stated in the petition of the Petitioner.

 

1. 2. If the Supreme Court makes order refusing Leave to Proceed in an FR application, or refusing Leave to Appeal or Special Leave to Appeal in an application for Leave to Appeal or Special Leave to Appeal, the Supreme Court should give reasons for the refusal.

 

1. 3. The Supreme Court should not force parties to settle FR applications. Supreme Court also should not terminate proceedings in an FR application merely because the Respondents are to settle the matter by paying some compensation to the Petitioner. The Supreme Court should proceed to decide whether the Respondents had violated a fundamental right of the Petitioner or not.

 

1. 4. Suspended sentences of imprisonment should not be given as punishment for the serious offences of murder and rape.

 

1. 5. Redressing malpractices at the Attorney General’s Department:

 

(a) failure to implement the CAT Act, No.22 of 1994.

(b) AG should not permit the dragging on of Magistrates’ Court cases by delaying advice sought by the Police in such cases.

(c) AG should not show leniency in criminal cases towards suspects/accused who are connected to the Government or politicians of the party in power.

1. 6. Redressing malpractices at the Attorney General’s (AG) Department: state lawyers should not be treated by the Courts at a higher level than lawyers of the unofficial bar; judicial officers should not privately see and discuss with State Counsel pending cases in the absence of the counsel for the opposite party.

 

1. 7. Parliament should without delay enact a statute defining the different types of contempt of court and punishments therefore. The Law Commission of Sri Lanka and the Bar Association of Sri Lanka (BASL) have already submitted draft legislation in this regard.

 

1. 8. Judges should not harass lawyers for personal reasons which have no connection to the parties to the case or the facts of the case.

 

1. 9. A Judge should not pre-judge a case. He/she should be open to persuasion by submissions made by counsel in the case, either on the facts of the case or the applicable law.

 

1. 10. The Court should recognize and always uphold the principle that their judgments can be criticized so long as no bad faith is attributed to the judge who wrote the judgment.

 

1. 11. Judges should not proceed to act on what the police or other state officer says merely because they are state officers, but judges must always give due consideration to whatever evidence is given and/or submissions are made by the opposite parties.

 

1. 12. Effective steps should be taken by state authorities to stop touting by police officers, prison officers and by court staff.

 

1. 13. Judges should not be compelled to depend on the favour of the Executive arm of Government in obtaining vehicles for their use, in obtaining temporary appointments in foreign countries while they are still judges in Sri Lanka, and in obtaining other perks or advantages for themselves or their families.

 

1. 14. Lawyers should not be reluctant to take up cases against the police or other state officers merely due to fear of incurring their wrath.

 

1. 15. Serious notice should be taken of public perceptions regarding the abusive practices of bribery and corruption within the legal system.

 

1. 16. The assignment of the Department of the Attorney General under the Presidential Secretariat should be changed. That department should continue to be assigned under the Ministry of Justice.

 

1. 17 The Police Department must be removed from the Ministry of Defence. Policing is a different concept from defence. Assignment of the Police Department to the Ministry of Defence undermines public confidence in the police and concentrates too much power in the Secretary to the Ministry of Defence.

 

1. 18. Judicial officers should show more sensitivity regarding extra judicial killings and torture by police officers.

 

1. 19. The Urban Development Authority should be removed from the purview of the Ministry of Defence.

 

1. 20. The Department of Immigration and Emigration should be removed from the purview of the President.

 

1. 21. Unnecessary issues relating to the security of the State being raised in objection to bail applications should stop and the Attorney General must strictly supervise the grounds of such objections to bail.

 

1. 22. Following the lifting of the emergency, the police and security services should not abuse the provisions of the Prevention of Terrorism Act.

 

1. 23. Serious note should be taken of the public perception that judges and magistrates are appointed for political reasons and not on merit, that judges and magistrates who do not comply with demands and wishes to politicians are victimized through immediate transfer to a distant and inconvenient station and that there is abuse of the disciplinary process against judges for political reasons and that some are favoured while others are falsely implicated.

 

1. 24. Serious note should be taken of the need to ensure the transparent and non-politicised functioning of the Judicial Service Commission (JSC).

 

1. 25. The period of one month allowed by the Constitution to file an FR application before the Supreme Court is grossly inadequate and should be changed forthwith.

 

1. 26. The JSC must without delay, make and publish in the Gazette, regulations relating to the substantive law and procedure relating to disciplining of judges and magistrates as well as court staff over whom they have disciplinary power.

 

27. Serious note should be taken of the perception among lawyers that judges, even in the highest courts, seriously lack an adequate knowledge of the law, especially the civil law, which is essential for the proper and satisfactory discharge of their duties, that judgments even in the highest courts do not show an adequate appreciation of submissions of counsel, and lack adequate reasoning and adequate quality and more that unethical and uncalled for comments are made by some judges in regard to lawyers, such as calling a lawyer a liar without adequate reason and thereafter failing to apologize even when it is shown that the judge resorted to such conduct due to an inadequate knowledge of the law applicable to the case under consideration.

---

• Attorney-at-Law; Director, Asian Human Rights Commission, formerly of the Office of the United Nations High Commissioner for Human Rights, Cambodia, poet & writer.

[1] Mortimer, John, Murderers and Other Friends, (1994) p. 153

[2] BBC, ‘John Mortimer: A Life in Words’ (22 December 2009) <http://www.bbc.co.uk/programmes/b00gvfzp>

[3] Fernando, Basil, ‘Sri Lanka; The politics of habeas corpus and the marginal role of the Sri Lankan Courts under the 1978 Constitution’, LST Review Issue 275 &276, Vol. 21, September and October, 2010, pp 20-34, Law & Society Trust, 2010.

[4] A full dossier of document relating to the debate on this removal is available, published by the Asian Human Rights Commission under the title ‘The Impeachment: Documenting the Rajapaksha Regime’s Scheme’ <http://www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake> (PDF available at that website)

[5] C.A. (Writ) Application No. 411/2012

[6] SC/REFERENCE 03/2012

[7] Cooray, Mark, ‘Impeachment; PSC Fulfilled All Requirements’, The Daily News,11/01/2013, 12/1/2013, 14/01/2013

[8] Fernando, Basil, The Colombo Telegraph, http://www.colombotelegraph.com/index.php/dr-mark-coorays-misrepresentation-of-the-way-a-judge-can-be-removed-in-uk/. (8/8/2013) In this article, Dr. Mark Cooray’s interpretation of Article 33 of the British Constitutional Reform Act of 2005 is comprehensively refuted. In brief, it must be said that at the time this act was being discussed, Lord Bingham, who was then Chief Justice, was working with the Government to establish a protocol surrounding judicial discipline and removal of judges. That protocol ended up developing into a bigger initiative which culminated in the establishing up of an Office for Judicial Complaints. The present procedure in the United Kingdom is essentially that where a complaint is made about judicial misconduct, an initial inquiry is conducted to see if the complaint has any merit. If it does, another judge is appointed to conduct an independent investigation of the complaint. The investigating judge receives representations from various parties (including the judge in question). The investigating judge then gives advice to the Lord Chancellor about what to do. The Lord Chancellor and the Lord Chief Justice then make a decision (after receiving further representations). There is then a review body (comprised of other judges and lawyers) who can conduct an appeal process (again after receiving representations). The review body then makes a recommendation to the Lord Chancellor and the Lord Chief Justice who then take a decision on the judge, see http://judicialcomplaints.judiciary.gov.uk/docs/Judicial_discipline_regs_-_consolidated_version.pdf.

[9] Kesavananda Bharati v State of Kerala And Anr,24 April, 1973; The State of Kerela v R. Sudarsana Babu, ILR (Kerela) 1983 p. 661; O.S. Manian v Speaker, Tamil Nadu Legislative Assembly (2000) MLJ 121; Raja Ram v Hon’ble Speaker, Lok Sabha and Ors, (2007) 3 SCC 184; S. Godavari Mishra v Spaker, Orissa State Legislative Assembly, AIR 1953 Orissa 111; A.J. Faridi v Chairman, UP Legislative Council, AIR 1963 Allahabad 75; Regina: Powers, Privileges and Immunities of State Legislatures, AIR 1965 SC 745; Karnataka v Union of India (1977) 4 SCC 608; Gunupati Keshavram Raddi v Nafisul Hasanand the State of UP, AIR 1954 SC 636

[10] Anderson, Morten Koch, The Phantom Limb: Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka (2009) <http://www.humanrights.asia/resources/books/AHRC-PUB-007-2009/?searchterm=phantom%20limb>

[11] Wikipedia, entry on “Phantom Limb” <http://en.wikipedia.org/wiki/Phantom_limb>

[12] (2013) <http://www.humanrights.asia/resources/books/ALRC-PUB-001-2013>

[13] Gunesekara, SL ‘The Lore of the Law & Other Memories’, (author/publisher), 2011.

[14] In his doctoral thesis (The criminal juridical system as marketplace (Chapter 5) unpublished, 2012 Dr. Nick Cheesman discusses interesting facts of this phenomenon, observing that litigation is reduced to a form of bargaining which benefits lawyers, prosecutors, judges and everyone else, except perhaps the actual litigants. The situation is somewhat similar to Cambodia, where there is a popular saying that at the end of any litigation the winner is left only with his suspenders, and the loser with nothing.

[15]These suggestions evolved through collective discussions hosted by the Asian Human Rights Commission with twenty Sri Lankan legal practitioners, Bangkok – 12-15 April 2013.

To support this case, please click here: SEND APPEAL LETTER