The meeting of the Sri Lankan delegation with the CAT Committee took place earlier. Kindly see our comments on those meeting of the 8th and 9th November.
It is now a suitable moment to take an overview of ‘the dialogue with Sri Lanka’ which the Sri Lankan delegation obviously did not treat as a dialogue. Why did the Sri Lankan delegation dodge the dialogue and instead, really provide the least amount of information on the most vital issues relating to the elimination of torture in Sri Lanka?
In the Asian Human Rights Commission’s report to the CAT Committee the AHRC stated that the GOSL is both incapable and unwilling to implement the obligations under the CAT. If we look into the reasons as to why Sri Lanka has become incapable of implementing the CAT we can easily find the explanation as to the manner in which the Sri Lankan delegation participated or some would say, did not participate in a constructive and cooperative dialogue with the CAT Committee.
The reasons for the incapacity to implement the CAT are fundamental because these are constitutional. Sri Lanka’s Constitution which was adopted in 1978 is the source of the impunity to the head of the state as well as to any agency of the state of which he is the head. Article 35 of the Constitution places the executive president above the law and outside the jurisdiction of the courts. As total control of all actions of the executive are with the president almost all acts done by state officers are virtually outside the jurisdiction of the courts. All matters of public policy come from the president.
The direct result of this situation was the displacement of all the public institutions of Sri Lanka, the police, the election commission and the civil service. By 2001 there was a general realisation that all the basic public institutions had collapsed due to over politicisation which meant the control of the executive president. There was public dissatisfaction. Responding to the public protest the parliament, with near unanimity passed an amendment to the Constitution, which is known as the 17th Amendment which brought about some limitations on the power of the president to make appointments, transfers, promotions and dismissals of public servants working in the above mentioned institutions. This was an attempt to bring about at least some limited control over the president’s super powers.
The present government got rid of these limited controls over the president by passing the 18th Amendment which virtually negated the 17th Amendment. The direct result was that all the public institutions are now under the direct control of the president.
Here lies the basic incapacity of the Sri Lankan state to function under the rule of law and to respect the international norms and standards relating to human rights. The political ‘order’ created by the 1978 Constitution and the practices that have become entrenched in the following 33 years have created a situation in which the commands of the president become law. Anything could be treated as legitimate as long as the president approves it. For example the extrajudicial killings of those persons who are considered as unwanted or bad criminals has now become a frequent practice as a way of dealing with law and order as understood by the regime. A long list of such things which within a rule of law system would be considered illegal and criminal but which within the Sri Lankan system is now considered legitimate could be made.
The total control of the president of all public institutions directly resulted in the disempowerment of those who hold higher positions in these institutions. For example in the police the Inspector General of Police and his deputies today have very little control over their subordinates. This has led to the virtual collapse of the disciplinary controls which has earlier worked reasonable well.
Today when torture is practiced at police stations there is hardly any possibility for the higher ranking officers of the police to impose disciplinary sanctions and punish recalcitrant officers. The institution thus faced such serious internal contradictions and is thus incapable of functioning in order to achieve goals as expected under the CAT Convention and by international norms.
What the CAT Committee members referred to as reality as against the law as it appears in the books is something that the superior officers of the hierarchy have little control of. In the real world they are powerless. The real power is with the political master.
It is not surprising that persons who have had their upbringing and education in developed democracies fail to grasp what the Sri Lankan legal system is today. This is perhaps the challenge the CAT Committee will be faced with in making recommendations for achieving torture elimination in Sri Lanka. The recommendations of the last session were totally ignored by GOSL. The usual recommendations for investigating, prosecuting and provide judicial remedies are of course, always valid but however, in terms of Sri Lanka are unlikely to produce any positive result.
Under the 1978 Constitution the word ‘impunity’ does not carry much meaning. The impunity for all executive actions is guaranteed by the constitution itself. Thus, the security forces are protected from any legal consequences as long as the executive can exercise such impunity.
The courts in Sri Lanka do not have the legal capability to alter this situation. Unfortunately in the past the court interpreted article 35 of the Constitution to mean that the presidential impunity is absolute. Over the last 33 years the jurisdiction of the courts in public law and criminal justice issues has been greatly curtailed. In response the peoples’ expectation of the courts has also diminished greatly.
Can the CAT Committee make meaningful recommendations in order to make a difference in a situation of this sort? This is the kind of question that international lawyers working with situations like that of Sri Lanka and of many other countries with similar situations need to deal with.
To act on the presumption that Sri Lanka still has a rule of law based legal system is to ignore reality. The real practice of torture which is the reality faced by the people cannot be altered if the recommendations themselves ignore the reality of constitutionally guaranteed impunity.
