We assembled jurists, lawyers and legal academics from throughout Asia gathered in Hong Kong on 17-21 November 2008 for the Fourth Regional Consultation on an Asian Charter for the Rule of Law note with serious concern the attacks on lawyers engaged in human rights work, victims of human rights abuse, journalists and others attempting to exercise their freedom of expression and association in order to defend human rights in Sri Lanka. The government’s passive response in the face of such attacks to take effective legal action amounts to a failure to honour the state obligations under the constitution as well as under international law. In fact, the details of these attacks indicate the encouragement of these actions by some agencies of the government itself.
A criminal justice system can function only to the extent that the people have the right to make complaints about their grievances without fear and with the hope that making complaints will lead to responses from the investigating, prosecuting and judicial branches of the government to ensure redress. In all the acts of violence relating to the categories of persons mentioned above the negative reactions of the police prevent the workings of the state machinery, as the police are under Sri Lankan law the agency responsible for recording complaints and making investigations into such violations. The dysfunctional nature of this policing institution has been brought about through design, by defeating the principle of command responsibility politicizing the entire system such that repression can take place to the benefit of a few.
The attacks on lawyers who are already working in extremely hard conditions to provide some form of limited assistance to the victims of crimes and abuse of power can only result in victims losing this assistance and thereby being unable to pursue their complaints. If at least some victims try to proceed against the odds to seek justice from state agencies for violations of their rights, then these victims themselves are subjected to assassination and other forms of serious harm.
The case of Sugath Nishanta Fernando and his family amply demonstrates the powerlessness of victims who experience grave injustices at the hands of the police. Nishanta Fernando was killed while pursuing charges against bribery and torture by some policemen in the Negombo area. The family has also been threatened with death. However, no protection has been afforded to them. Prior to the killing Nishanta Fernando also complained of death threats to the Sri Lankan authorities but no protection was afforded to him either.
The attacks on lawyers are an extension of the attacks on complainants. A grenade attack on a senior lawyer who is involved in anti-graft and human rights abuse cases against many state officers, including some powerful politicians, drew a sharp reaction from lawyers and their associations in Sri Lanka. However, there was no effective investigation into this crime, which if it had succeeded could have killed the entire family.
Shortly after this a letter was distributed to many lawyers and registrars of courts by a group calling itself Mahason Balakaya (Ghosts of Death Battalion), threatening them with death if they appear for alleged terrorists. A letter was soon also published on the defence ministry website naming some lawyers who had filed fundamental rights applications before the Supreme Court for some alleged terrorist suspects. The tone and content of the two letters were the same: lawyers and human rights organisations are termed as paid agents of the Liberation Tigers of Tamil Eelam.
The basic design of these publications is to intimidate and terrorize lawyers and thereby create a sense of helplessness among the complainants about the abuses they have suffered at the hands of state agencies. It is also aimed at creating an impression, by intimidating complainants, that the lessening of complaints is an indication of the improvement of human rights in the country and therefore claims of abuse are exaggerations by interested parties.
The attacks on journalists are associated with an overall approach to create helplessness among the people and force them to accept deprivation of their rights in silence. Journalists have been killed, physically harmed and prosecuted without any basis and exposed to extremely serious situations in which they may become victims of abuse by government supporters or by mobs. Several of the attacks on journalists were lead by a minister in the government. As in the other attacks mentioned above, the government maintains well-calculated passiveness in the face of complaints.
Under the present circumstances the criminal justice system cannot function with any degree of credibility. Violators of rights can act with assured impunity and under the patronage of powerful persons and agencies.
We have studied this situation with anxiety and we wish to express our deepest solidarity with the suffering people of Sri Lanka who have lost avenues to seek justice. We can see no other way than for the people themselves to organise effectively for the purpose of protecting their rights and demanding far reaching reforms in the criminal justice field. It is the duty of all political parties, media agencies and civil society groups to consider the protection of witnesses and complainants, lawyers and journalists as a priority. This venture for achieving reforms in criminal justice within Sri Lanka deserves the support of all peoples in the Asian region, who now need to come together to protect each others’ basic rights. Global movements of human rights and democracy should wholeheartedly support the Sri Lankan people in their struggle to achieve basic institutional reforms for justice and protection.
The undersigned,
Justice Nasir Aslam Zahid (retd.), Supreme Court of Pakistan
Dr. Chandrasekharan Pillai, Dean, Kochi, University of Science & Technology, India
Mr. S. Ashiq Raza, High Court Advocate, Pakistan
Mr. Chung Mi Hwa, Lawyer, Former Vice President, Lawyers’ Association for a Democratic Society, Rep. of Korea
Mr. M. Shamsul Haque, Advocate, Supreme Court, Bangladesh
Ms. Phromlak Sakpichaimongkol, Lawyer, Lawyers Council of Thailand
Mr. Jijo Paul, High Court Advocate, India
Mr. Asep Rahmat Fajal, Director, Indonesian Legal Roundtable
Mr. Rishikesh Wagle, Lawyer, Nepal
Mr. Basil Fernando, Director, Asian Human Rights Commission, Hong Kong & Attorney-at-Law, Sri Lanka
Mr. Bijo Francis, Progamme Officer, South Asia Desk, Asian Human Rights Commission & Lawyer, India
Ms. Carla Ferstman, Director, Redress, UK
