Today is the sixth anniversary of the assassination of the well known BBC journalist Mylvaganam Nimalrajan. It is also two months now since the disappearance of Fr. Jim Brown and his assistant (please refer to UA-280-2006) and during this time large numbers of journalists, social activists, aid workers and many others who were involved in one or more activities relating to freedom of expression and the welfare of the people, have been assassinated. There is not a single instance in which any of these crimes have been properly investigated or prosecuted.
The British government’s report on human rights (2005 issued last week) called on the government “to ensure that allegations of human rights abuse are credibly investigated in an open and transparent way followed by prosecution where there is sufficient evidence.”
The UN agencies, international human rights groups and local media and other groups have been making the same call for a long time now. However, investigations never take place except by way of a few initial gestures, at the end of which nothing ever happens.
The case of Nimalrajan illustrates what happens to such investigations. The BBC (Sinhala) Service quotes a spokesman from the Free Media Movement regarding the investigations in this case,
“The investigation was stopped because the guilty people are connected to the government. This had been the pattern in many of the killings of journalists in Sri Lanka. Subsequent governments had failed to bring killers of journalists to justice.”
Further, Reporters without Borders alleged that the Sri Lankan police and some judges have tried to stop bringing to justice those implicated in the murder of Nimalrajan.
The sabotaging of inquiries can only happen when the police, as well as the judiciary, fail in their legal obligations in not playing the roles they are expected to play in criminal investigations. In numerous publications and statements the Asian Human Rights Commission has pointed out the failures of the police to investigate crimes. However, in this statement we concentrate more on the failure of the judicial role in ensuring proper investigations into crimes which include those relating to gross human rights abuses.
According to the Code of Criminal Procedure Act of Sri Lanka the magistrate in his geographical area of jurisdiction has to play the central role in ensuring that the police or any other inquirer conducts investigations into any crime in the proper manner. Once a crime has been reported and the investigations have begun the police or any other inquirer is required by law to submit reports to the Magistrate’s Court. This ensures that from the beginning of the very first report of a crime at the Magistrate’s court the Magistrate has the power and the duty to supervise the investigations and to give all necessary directions to the police on the required actions that the police should take to ensure proper investigations. The supervising of the process of the completion of inquiries is the task of the Magistrate or other judicial officers before whom such reports are filed.
If inquiries are stopped at one or another stages it is the duty of such judicial officers to inquire as to the reasons of such a situation from the investigators and take counter measures to ensure that the investigations are carried out to the very end, and that all necessary elements for the filing of prosecutions is completed. Thus, in all failed investigations it is not only the failure of the police that should be examined but also the failure of the judicial role.
There are vast powers available to judicial officers in supervising and giving directions in criminal investigations. These include the calling of senior officers where junior officers fail to fulfill their obligations under the law. By holding senior officers responsible in investigations a Magistrate can ensure that all failures and negligence on the part of the investigators are brought under scrutiny.
Despite of the vast powers available Sri Lankan judicial officers have begun to play an extremely low key role and often a negative role with regard to ensuring proper investigations into all crimes. Often they do nothing else accept to record what the investigating officers say and keep on postponing cases without scrutinizing the progress of investigations. The investigators have over the years learned how to exploit the passive role that the presiding judicial officers play and thereby escape their responsibilities.
So far while there are many complaints about failed investigations and sometimes, quite correctly the blame is placed on the police, no sufficient examination has been done by anyone on the failure on the part of judicial officers in these matters. It is no longer possible to pursue issues of the protection and promotion of human rights in Sri Lanka without monitoring and examining the role of the judicial officers in the performance of their duties in relating to ensuring proper criminal investigations. The deadlock that now exists regarding the lack of progress in criminal investigations cannot be broken without reactivating the judicial role.
There may be many factors that have contributed to the judicial negligence relating to such investigations. These need to be studied and brought to public discussion both locally and internationally if the experiences of thousands of cases like that of Nimalrajan and Fr. Jim Brown are to be avoided in the future.
