The Asian Human Rights Commission welcomes the statement made by ten UN experts on the 9th February, 2009 expressing deep concern at the suppression of criticism and unabated impunity.
In the first paragraph of the statement the experts express special concern on the following matters.
- The shrinking space for critical voices
- The fear of reprisals against victims and witnesses, and
- A lack of effective investigations and prosecutions
The experts state that these factors have lead to unabated impunity for human rights violations.
Shrinking space for critical voices
The problem of the attack on the media and, in fact, anyone, who expresses dissent, has been recorded through virtually hundreds of reports, not only in Sri Lanka but also internationally. From the 24th January 2007 up to the 8th January 2009, 11 journalists have been killed and 27 assaulted, according to a report published by the Sunday Leader on 8th February. In addition 11 journalists have left the country. There have been numerous attacks on reporters and media institutions. The attack on the premises and the press machinery of the Sunday Leader as well as Sirasa TV are the two of the best known examples. All global media organisations have repeatedly condemned these attacks.
However, the position of Gotabaya Rajapakse, the Secretary to the Ministry of Defense expressed in a televised interview was that at this time, when the country is at war, dissent amounts to treason. Earlier six former United States Ambassadors to Sri Lanka wrote to draw attention to the attacks on the media. Their letter was prompted by the assassination of Lasantha Wickrematunge.
Therefore, the observations of the ten UN experts are well founded and deserve a serious response from the government of Sri Lanka. What the government should have indicated was the measures that they will take in order to assure media freedom and what steps they are taking to bring the culprits of the earlier attacks to justice.
Instead of these steps the government has withdrawn the charges against Minister Mervyn Silva, who was charged in the High Court for the alleged assault on a Sirasa TV cameraman and for damaging his camera on the 6th August, 2008. The alleged assault, according to the witnesses, took place when a cameraman from the MTV channel (Sirasa TV) attended the ceremonial opening of an event to which the channel was invited to attend by the Ministry of Highways. The indictment against the minister was filed due to the order of the Supreme Court. However, the Attorney General has used his powers of Nolle prosequi (Not to pursue). While the Attorney General has the power of Nolle prosequi, it is used most rarely and not for political purposes. The use of such power in a case of the physical attack on a journalist can hardly be justified on any legitimate basis. The clear message of such action is to strengthen impunity.
The fear of reprisals against victims and witnesses
The ten UN experts state that: A climate of fear and intimidation reigns over those defending human rights, specially over journalists and lawyers. The safety of defenders has worsened considerably over the past year, most significantly following denunciations of human rights abuses committed by parties to the conflict, of corruption by state officials and of impunity.
The climate of fear spreads to everyone who dares to complain about any state authorities. The most glaring examples of the complete absence of protection to witnesses are the cases of Sugath Nishanta Fernando and his family and Gerard Perera. Both were witnesses in cases against police officers. Before they could give their testimonies they were both killed.
The case of Nishanta Fernando and his family demonstrates the highly organised manner in which reprisals against witnesses are carried out, not only by individual officers but also with the patronage of the policing system as a whole. Nishanta Fernando, received death threats to withdraw a petition filed in the Supreme Court against 12 police officers from Negombo for the severe assault on his wife, two children and himself within 24 hours. He complained to the Inspector General of Police and other Sri Lankan authorities, requesting protection. Sadly he received none of the protection he prayed for and was assassinated on the 20th September, 2008. From then on, the lives of his wife and two children came under threat and they stated to the Magistrate’s Court of Negombo that they suspected the police officers who were respondents in the Supreme Court case, as the possible suspects of Nishantas murder. The family requested protection from the court and the police. However, the family insisted that they did not believe that the officers of the same police station would provide protection for them, but would instead aggravate the problem. They requested special protection, preferably from the Criminal Investigation Division (CID).
A lawyer appearing before the Supreme Court on the fundamental rights petition mentioned above informed the court on the 10th November, 2008 about the plight of the victims and requested the intervention of the court. The Supreme Court then made an order giving directions to the Deputy Inspector General of Police of the Western Province, North, to afford special police protection. However, no action was taken to afford this protection. Instead, the Criminal Investigation Division branch at Peliyagoda, Colombo requested the petitioner to make a state to the effect that since any police officers, knowing where she is hiding, might endanger her security that she is declining to accept police protection. The widow refused to give such a statement and made her position clear by way of an affidavit stating that while she does not trust the officers of the Negombo police, some of whom she suspects were responsible for her husbands murder, to give her protection, she would prefer a special arrangement such as protection by way of some arrangement by the Criminal Investigation Division. On the 31st December, 2008 the Inspector General of Police submitted a letter stating that the petitioner had not cooperated in the matter of affording security to her and her family and that the petitioner is now seeking that the security be provided by the Criminal Investigation Division, which the IGP considered was not possible, considering the distribution of work in the police force. On the basis of the IGPs letter the Supreme Court ordered, That in the circumstances, no further action needs to be taken by the police on the basis of order dated 10.11.2008.
The IGPs letter dated 31.12.2008 was a distortion of the position taken up by the widow and on the basis of this distortion the police have abdicated their responsibility to provide protection.
There has not been a single instance where the police have provided any form of effective protection for the many who have sought it. The Asian Human Rights Commission is aware that there are many living in hiding, trying to protect themselves from state officers against whom they are witnesses in court cases. They are left to their own devices to find protection. In this same case the lawyer for the widow and the human rights organisation which assisted her also received several death threats. On the 30th January, 2009 the office of the lawyer was burned down after he was threatened with death two days earlier by a police officer in the presence of many others of the Negombo police station.
Thus, the observation of the ten UN experts on the protection of lawyers, journalists and witnesses is most timely. However, the government has not made any positive response to the observations of the experts on this score. There is nothing to indicate that the government is making any attempt to change the course of denial of protection to witnesses. The witness protection law which was introduced under severe local and international pressure has been virtually buried. There is no indication that legislative, judicial and administrative measures required under Article 2 of the ICCPR will be taken in the near future.
A lack of effective investigations and prosecutions
The ten experts refer to the lack of effective investigations and prosecutions. The six former ambassadors also state
We urge you to take steps to reestablish accountability and the rule of law in Sri Lanka. Investigations have been promised before but have been futile. At times government officials have not appeared diligent, as happened in the investigation of the killing of NGO workers assisted by the International Eminent Persons Group.
The Sri Lankan parliament, in 2001, when discussing the 17th Amendment to the Constitution, with a rare occurrence of unanimity, was of the opinion that all of the public institutions in Sri Lanka have been politicised and were therefore unable to perform their functions as required by the law. Among the public institutions discussed was the Sri Lankan police.
What is meant by politicisation is the direct interference by the government or by politicians into the workings of the public institutions so as to deprive these institutions of their independence and their capacity to control themselves from within in terms of the norms and standards that they are supposed to uphold. The failure of the police to investigate crimes is a result of this politicisation. This started with the adoption of the 1978 Constitution which replaced governance on the basis of separation of powers with an executive presidential system which placed absolute power in a single individual without checks and balances. Prior to this period the Criminal Investigation Divisions in Sri Lanka functioned in an adequate manner even in sensitive political cases. The assassination of the Prime Minister, SWRD Bandaranaike and the attempted coup of 1962 by several leading persons in the armed forces and many cases involving powerful persons and politicians were successfully prosecuted on the basis of competent and impartial investigations conducted by the Sri Lankan police.
This tradition of investigations into crimes was disturbed by the politicisation as mentioned above. Therefore, any attempt to reform must have, as its key component, the removal of the politicisation that has spread into these institutions.
The UN experts have also highlighted the fact that thorough reforms of the general system of governance are needed to prevent the recurrence of further serious human rights violations. Such reforms are essential if it is to be made clear to the members of the security forces that discipline will be enforced and the violators will be brought to justice as pointed out by the six former US ambassadors. However, carrying that message meaningfully requires visible attempts to depoliticize public institutions and particularly the criminal investigation divisions of the police. The six former ambassadors have, in their letter addressed to the president stated that, Only you can provide the leadership and clear direction that will make this happen. Particularly within the framework of the 1978 Constitution only the executive president can ensure such leadership and clear direction.
Sometimes the government spokesmen take the view that the government does not have adequate capacity to investigate and to prosecute. However, experience from the time of independence up to about 1978 demonstrates that the Sri Lankan policing system has had the capacity to investigate serious crimes adequately and satisfactorily.
It cannot be reasonably argued that the murder of Sugath Nishanta Fernando, the grenade attack on the house of lawyer, JC Weliamuna, who is involved in human rights and anti graft advocacy, the attack on Keith Noyahr, the assassination of Lasantha Wickrematunge and even the serious attack on Upali Tennakoon have not been successfully investigated due to the incapacity of the Sri Lankan police investigators. In the same manner the withdrawal of the indictment against Minister Mervyn Silva regarding the alleged attack on a cameraman is not due to the incapacity of the Attorney General’s Department to prosecute.
The statement of the ten UN experts as well as the six US ambassadors on the issues of the rule of law and the investigation and prosecution of crimes requires a serious response from the government which should spell out a clear message that the countrys leadership wants to bring to an end the existing dangerous trend of impunity.
For the full statement of the ten UN experts please refer to the AHRC Forwarded Statement at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1875/ and the Open letter by the Six US Ambassadors at: http://www.ahrchk.net/statements/mainfile.php/2009statements/1854/
