2016 end-of-the-year commentary on human rights in Sri Lanka
The neglect of the right to life within the country is quite symbolically expressed in the failure to address the spread of dengue in any significant manner.
While the deaths due to dengue fever is high, a number of areas were declared as being more prone to the fever. In almost every area of health, complaints could be heard from the people, particularly from among the common folk, of neglect and hopelessness.
The threat to life was also visible in the appalling failure of the rule of law and the most common feature of people’s conversations was about the widespread lawlessness and the consequences thereof. Deaths on roads were part of common conversation, with daily additions of tragic events being reported. Together with the reports of deaths and injuries come also harsh comments about the lack of credible inquiries and the hopeless situation regarding insurance and compensation.
The most frustrating aspect of life in the country are the extraordinary delays in the system of justice, which frustrate all victims of crimes and victims of civil wrongs in pursuing demands for redress. Despite the central authorities being quite aware of this situation, it is allowed to be continued. It is almost a matter of design now to deprive the people of the possibility of taking steps to protect their own rights by way of their courts, as there is no visible effort to create the incentive to pursue justice. The talk about heavy workloads in the courts remains as a mere rhetorical gesture while, in the practical sphere, the situation of delays has been allowed to degenerate further. The investigating system into crime, as well as the prosecuting system, are all at a stage where the relevant officers complain that they cannot control the situation and that, often, they themselves become the movers for the postponement of cases. On average, the filing of an indictment by the Attorney General’s Department takes over four years, and the final completion of a trial could take easily over 10-15 years. In tried cases, many judges hear only a small part of the evidence. The judge writing the final judgment, most of the time, has not heard the evidence of many of the witnesses in the case. In each case, there can be 10 or more prosecuting attorneys, playing a little part during various stages of the trial. The attorneys who come in the latter part of the trial are often not aware of what had happened earlier.
This situation creates opportunities for manipulative and cynical lawyers to make submissions to court which may seriously misrepresent the evidence led in the trial. There are recorded instances of judgments given on the basis of such false submissions that seriously contradict the evidence on record. There have been instances when such false submissions are not contradicted by the final prosecuting state counsel, perhaps because he is himself not aware of what is in the heavy file of evidence in the case compiled over 10 or more years.
At this stage, if the aggrieved party launches an appeal, the appeal itself will take several years. In any case, if the appellant succeeds at the end, the decision most of the time is to have a fresh re-trial, and then the whole circle of events narrated above gets repeated again.
In the areas of extrajudicial killings and other arbitrary deprivation of rights, torture and ill-treatment, and other human rights abuses, the Sri Lankan state has failed to create an independent investigating mechanism.
After the 5th session on Sri Lanka held in September 2016, the United Nations Committee against Torture sharply pointed out this problem in their report. Investigations are being conducted, if they are conducted at all, by Assistant Superintendents of Police, who are the superior officers of the alleged culprits. The cover-up and compromise, and in some events threats to witnesses, are the common features of such investigations. The failure to appoint independent investigating teams is a matter of design so as to discourage complaint-making against police and security forces.
The UN Committee against Torture has also pointed out the defects in the system in allowing criminal investigations to be conducted by the police alone, without proper controls by the Attorney General’s Department and by the courts.
Much of the problems about illegal arrests, illegal detention and torture and ill-treatment can be corrected if the magistrates play a more diligent role in terms of overseeing the police, particularly as the UN Committee against Torture has recommended that arrests should only be made with warrants issued by magistrates, except in situations recognized as exceptions.
However, there are no reasonable grounds to believe that measures will be taken to implement such recommendations.
The appalling neglect on the part of the Ministry of Justice and the Ministry of Law and Order to deal with the problems that exist within the justice system contribute to the prevalence of lawlessness and the failure of the rule of law.
Under the present circumstances, neither the government nor the opposition has any genuine interest in improving the respect for human rights in the country.
If anything is to be achieved in the coming year, it would depend on civil society movements that take up the issue of the failed legal system as one of their major concerns. As of this year, even the civil society contribution to ensuring justice to the people has not been adequate or impressive. The central authorities and the political establishment can only be moved to pay attention to this tremendous national tragedy by active civil society involvement without any political bias, committed only to the pursuit of the interests of the people.
