International Obligations
(a).i. To comply with the obligations under the optional protocol to the ICCPR the government must promptly enact legislation to enable the views of the Human Rights Committee to become implementable in Sri Lanka. In the light of the Singarasa case enactment of such legislation should be treated as a matter of urgency. Without the enactment of such legislation the citizens of Sri Lanka will be deprived of the rights they have gained to complain to the Human Rights Committee on violations of the ICCPR particularly in the light of the Supreme Court judgement relating to the decision of the Human Rights Committee on this case.
(a).ii. That a parliamentary sub-committee be assigned to which all recommendations of treaty bodies are submitted soon after they have been made to the government by any of the treaty bodies. To begin with all the recommendations made by the Human Rights Committee after periodic reviews, the CAT Committee, CEDAW and others which have already made many recommendations be referred to this parliamentary sub-committee. This sub-committee should be mandated to supervise the state response to such recommendations and to report to the parliament of all matters relating to such recommendations and the measures taken by the state to implement them.
Investigations
(b).i. Investigations into all human rights violations are primarily the duty of the Inspector General of Police through the department of the police. Except in some cases regarding police torture by lower ranking officers the police have failed to investigate into human rights abuses as required under the Criminal Procedure Code (CPC) of Sri Lanka. This failure demonstrates serious disorganization within Sri Lanka’s criminal investigation system. This failure has been investigated by various commissions appointed for the purpose since the late 1940s. However, the situation in recent decades has further deteriorated rather than being improved. One of the major reasons for such deterioration is the state sponsored violence by way of abductions, disappearances, torture, the creation of mass graves and the maintenance of torture chambers within detention centres (particularly military detention centres). State sponsored violence has created two types of problems. One is that the police officers themselves including high ranking officers have taken part in such violence on a large scale. The other reason is that when the state itself is involved in such violence there is severe constraint to investigate such acts. This problem of the investigating unit is the key issue that guarantees immunity to perpetrators. This issue needs to be addressed if there is to be any improvement at all.
NOTE: there are all sorts of attempts to avoid this problem by such suggestions as giving the function of human rights investigations to the Human Rights Commission of Sri Lanka (HRCSL) or by the appointment of various commissions which have been assigned with fact finding functions or supervisory functions relating to investigations into abuses of human rights. One such commission has even been given international experts to observe it. The AHRC does not believe that any such commissions can be a substitute for the restoration of the criminal investigation function which is vested by law with the Sri Lankan police. The AHRC has further constantly expressed the view that these attempts cannot by their very nature achieve the aim of conducting credible investigations into human rights violations. Whether intended or otherwise, such measures only serve to delay the investigations and thereby to dissipate the complainants by the pursuit of their complaints.
Over a period of time the public pressure initially generated by such incidents also dissipates. At the end the problem returns to its original position which is the absence of investigations into abuses of human rights. The AHRC has struggled very hard to impress upon the government as well as the local human rights lobby and the international human rights lobby about this problem which is at the crux of dealing with human rights violations. The AHRC is deeply disappointed that the government, the local human rights lobby as well as the international human rights lobby has not paid adequate attention to this basic issue. The AHRC is also of the view that until the government, the local human rights lobby and the international human rights lobby take this issue as the central issue regarding human rights redress in Sri Lanka no significant improvement will happen, rather the situation will degenerate further.
(b).ii. To achieve the above objective the following problems in the Sri Lankan policing system need to be addressed.
(b).iii. The collapse of the exercise of command responsibility by officers of higher ranks as required by the Department Code of the police as well as the normal practices of any policing system that has a credible record of investigations into crime. There is a serious problem at the very top of the policing system in terms of the quality as well as the willingness of the top ranking officers to exercise their responsibilities. The neglect of the duties of the top ranks has also contributed to the allegations of serious corruption in some of the top ranking officers of the police. There are further allegations of direct criminal involvement of some such officers. Without resolving the problems that lies at the very top of the policing system it is not possible to get this system to function in a manner that the law requires. All these problems of top layer of the police seep down to the lower ranks. As a result the entire system today suffers from dysfunctionalism. The AHRC has through constant communication tried to highlight this issue. On this too the AHRC is disappointed that neither the government nor the local human rights lobby, nor the international human rights lobby on Sri Lanka has taken this issue as a significant one in dealing with human rights violations.
(b).iv. As a result of the above mentioned problems and others serious criminal investigators within the policing system do not get the internal support as well as the security they need to conduct investigations into serious crimes including serious human rights abuses. Such investigators are in danger of their lives from outside forces such as organised crimes including alleged terrorism and also they suffer from internal problems of betrayal in their organisation itself. This has resulted in the waste of much talent and training that has gone into the creation of crime investigating capacity within the premier law enforcement agency in the country. Once again the AHRC notes that neither the government nor the local human rights lobby or the international lobby on human rights in Sri Lanka have paid sufficient attention to this problem.
(b).v. The National Police Commission when functioning under the commissioners selected in conformity with the constitutional process were able to create a sense of protection to the law enforcement officers that the NPC is capable of protecting them from undue influences of their own higher officers as well as from political interference. The non-appointment of the constitutional council resulting from the inability to follow constitutional process has lead to political appointments to the NPC itself. It has destroyed the moral authority that the earlier commissions had built to some degree during their term in office. Now the police officers will not turn to the protection of the NPC and therefore their subservience to a degenerated system has been reinforced. The revival of the implementation of the 17th amendment is a precondition to begin a process of recovery of institutional independence of the country’s basic institutions.
The Attorney General
(c).i. The failure to prosecute serious crimes including serious abuses of human rights is a failure on the part of the country’s prosecuting office which is vested with the Attorney General. This failure and the way to remedy it have not yet become a key concern of the government or the local and international human rights lobby. The excuse of the Attorney General’s Department is that it only prosecutes when evidence is made available by the police investigators. Its claim is that it also has not duty to ensure investigations. Therefore, when investigations do not taken place for the reasons stated above the Attorney General’s Department claims that the prosecutors are not responsible for this situation.
LEGISLATION NEEDS TO CLEARLY DEFINE THE ROLE OF THE ATTORNEY GENERAL IN CASES OF CRIMINAL PROSECUTIONS. IT MUST CLEARLY LAY DOWN THE DUTIES OF THE ATTORNEY GENERAL AS THE HEAD OF THE PROSECUTING BRANCH TO ENSURE THAT THE CRIMINAL BRANCH UNDERTAKES INVESTIGATIONS INTO ALL CRIMES AND THAT FROM THE VERY START OF SUCH INVESTIGATIONS THE ATTORNEY GENERAL’S DEPARTMENT PLAYS A SUPERVISORY ROLE TO ENSURE THE INVESTIGATIONS INTO EACH OF SUCH CRIMES.
THE LEGISLATION MUST ENSURE THAT THE ATTORNEY GENERAL CANNOT CLAIM IGNORANCE ABOUT ANY OF THE ALLEGATIONS OF SERIOUS CRIMES INCLUDING HUMAN RIGHTS ABUSES AND THAT THE DEPARTMENT HAS THE DUTY TO INFORM THE GOVERNMENT AND THE PUBLIC OF PROGRESS INTO INVESTIGATIONS INTO SUCH CRIMES. SUCH LEGISLATION IS ESSENTIAL IN ORDER TO BREAK THE PRESENT DEADLOCK REAGARDING INVESTIGATIONS WITHIN THE POLICING SYSTEM AS WELL AS THE PRESENT DENIAL OF RESPOJNSIBLITY BY THE ATTORNEY GENERAL’S DEPARTMENT.
(c).ii. An alternative to the suggestion made in the above paragraph is to create an independent public prosecutors office vested with the power to prosecute all cases of serious crimes which itself should be clearly specified. The head of such a department should have the independence to conduct prosecutions without the control of any other agency including the Attorney General himself. The 1973 model of the public prosecutor with suitable amendments to exclude the department being under the AG’s department would result in such as institution. Such institution should have personnel and any material resources to perform its duties.
(c).iii. The two alternatives made in the previous paragraphs do not in any way imply that the prosecuting function and the investigating function should be combined. Given the massive extent of human rights violations in the country as well as the nature of organised crime it would be impossible to create an institution having both functions in one organisation. What is suggested is only that the prosecuting agency should be closely linked to the investigating agency and should have supervisory responsibilities clearly defined by law.
(c).iv. Out of the two propositions made in paras C.i. and C.ii. above it is suggested that as the most implementable proposal in at least the transitional period is the suggestion made in paragraph C.i. which is to make legislation relating to the prosecuting function of the Attorney General clearly laying down the AG’s responsibilities in this area.
Judiciary
(d).i. The judicial role in ensuring fair trial by preventing abuses of the investigating process and the prosecution is one of the areas which requires great attention in dealing with the present situation of the collapse of criminal justice. Clearly there are provisions of the law as well as judicial decisions dealing with the judicial role to some extent. However, the role has not been expressed so clearly as in the Indian case known as the Best Bakery case decided by the Indian Supreme Court. [Please see: Zahira Habibulla H Sheikh and Anr (Petitioner) vs. State of Gujarat and Ors (Respondent) CASE NO.: Appeal (crl.) 446-449 of 2004 decided on 12/04/2004.] In this case the Supreme Court insisted on the duties of a trial court to deal with issues of perfunctory and not impartial investigations, improper conduct of trial by public prosecutor, state failures to provide witness protection as all aspects that go into the duty of the state to ensure fair trial. In a lengthy judgement the court detailed the obligations of a trial judge not just to be a recorder or passive observer but to play an active role in ensuring fair trail in criminal cases emphasizing that those cases which affects the public security such as the massacre which took place in Gujarat where organised Hindu mobs killed Muslims, as matters of extreme importance from the point of view of maintaining rule of law and public confidence in law. As it is unlikely in the present circumstances that there will be a clear articulation of these duties by way of a judicial decision in Sri Lanka bringing on legislation to improve the criminal procedure law by more clearly articulating the duties of a trial court to address issues regarding proper investigations and prosecution of crimes can contribute a great deal to resolve some of the problems regarding investigations and prosecutions mentioned above.
(d).ii. It has also been observed that in recent times in the case of alleged extrajudicial killings where the police or the military claim that the death took place due to the suspect attempting to escape the magistrate has made decisions on the matter at the very early stages of the inquest itself. Clear instructions need to be issued to the magistrates in dealing with suspicious deaths and particularly those deaths which are alleged to have been carried out by law enforcement officers. Such instructions should clearly lay down that the decision on culpability should lie with the trial court which will have arrived at such decisions only after the hearing of all the evidence available.
(d).iii. There have also been emergency laws and anti terrorism laws which deprives the magistrates to intervene into the cases of suspicious deaths under certain circumstances. In the past some regulations have allowed the police officers of some rank to permit disposal of human bodies. This virtually amounts to facilitating the carrying out of forced disappearances. There should be a bar to making of such emergency or anti terrorism laws which take away the most essential powers of the judges to safeguard the liberty of persons.
(d).iv. The procedures for habeas corpus applications is beset with serious limitations. The possibility of quick access to the judiciary, for example in the Philippines where habeas corpus applications can be made to the nearest magistrate at any time of the day even outside court, and other such practices need to be brought in to improve the judicial capacity to intervene into the cases of abductions and alleged disappearances. A law more clearly defining the provisions of the habeas corpus law and procedure is very much needed.
(d).v. The applications under Article 126 of the Constitution to the Supreme Court on fundamental rights is beset with serious problems. Despite of constitutional provisions for speedy disposal of fundamental rights issues there are great delays in disposal of such cases. The work load of the Supreme Court is usually given as the cause for such delays. There has also developed practices such as postponing of hearing fundamental rights petitions until criminal cases relating to the same issue are disposed of. Thus, the delays in High Courts also affects the delays in the Supreme Court. Further it is still very difficult for people living in various parts of the country to come to the Supreme Court by way of such applications. The present situation makes the people more dependent on the lawyers in the city and this also often implies payments of high costs to the lawyers which most victims of human rights abuses coming from the poorer classes of society cannot afford. Although there are some legal aid schemes they are not adequate at all to provide a competent and speedy service. There are also many allegations of corruption in the administration of such services. There is also the problem in recent times that many lawyers do not want to undertake applications on human rights issues or on public law which are averse to the ruling regime to the courts. Further the Supreme Court rulings on compensation to torture victims does not reflect the international law on these matters. Further the Supreme Court decision in the Singarasa case has also created discouragement for the pursuit of international norms and standards before the courts of Sri Lanka.
(d).vi. The absence of a clearly defined law of contempt has also resulted in intimidating citizens as well as lawyers on pursuing the matters relating to rights issues in a forceful manner. The Human Rights Committee decision on Tony Fernando’s case (Communication 1289/2003) has not been implemented by the Sri Lankan government. The lawyers are officers of the court and are an essential part of the functioning of a justice system. If the citizens cannot find lawyers who are willing to take up difficult problems of human rights violations and public law before courts this seriously affects access to justice. The inability of the lawyers to participate actively in the rights of their clients may depend on matter arising from lack of competence or unwillingness on the part of the lawyers.
Unwillingness may arise from professional considerations for security when they will be adversely affected if they take up such cases vigorously. It may also arise due to intimidation where either powerful state officers or organised crime may make them targets. It may also arise from sheer lack of proper remuneration for such work. It may also arise from a realization of the weaknesses of the professional organisations of lawyers that makes such organisations unworthy of being relied upon for the defence of professional rights. All these factors seem to be combined in the present situation of lawyers in Sri Lanka. Without radical improvement of the professional involvement of lawyers brought through genuine encouragement by the judiciary as well as serious defence of professional rights by lawyers associations the present situation cannot be changed for the better. The high demoralization that is spread throughout the country among the lawyers needs to be an issue that must concern all persons and organisations including international human rights organisations and the United Nations in trying to find solutions to the present impasse relating to human rights in Sri Lanka.
Witness protection
(e).i. None of the issues mentioned regarding investigations, prosecutions, judicial functions and lawyers’ obligations will have much effect without a serious attempt to improve witness protection in Sri Lanka. Witnesses are the eyes and the ears of courts as mentioned by Bentham and of court known to any person with common sense who knows about legal process. The requirements for the improvement of witness protection is as follows. A clear and a comprehensive law created obligations of protection and the supervisory duties of all agencies including the prosecuting authority and the judiciary.
The law must also clearly lay out the organizational responsibilities of maintaining a witness protection programme. It must also clearly lay down the obligations to provide alternative safe houses, the possibilities changing places of abode for short or long periods, livelihood issues affected by the conditions of secrecy and anonymity required in being witnesses on some occasions, the possibilities of maintaining pseudo names or non revelation of identity of witnesses and all other such matters which are associated with witness protection in modern times. The law must also specify where the fund allocation for such an operation is to take place. Perhaps it may be said that the most primary need to make a difference to the present situation lies in the creation of an authentic witness protection scheme.
Monitoring
(f).i. To remove obstacles to the monitoring function of the local human rights bodies including human rights organisations and international human rights monitoring, given the extremely collapsed nature of Sri Lanka’s investigating and prosecuting branches the major role in monitoring human rights violations will lie with civil society initiatives, media initiatives and international human rights initiatives. Without the mediation of these elements it is not possible for any of the institutions mentioned above to function. At present there are severe restrictions by way of death threats and actual execution of such threats to all persons engaged in such monitoring and lobbying.
A climate of fear is created on the basis of propaganda on war and pseudo security. This is an area in which particularly the international human rights lobby can play a major role in trying to create a greater space for local human rights monitoring and lobbying. The need for a international monitoring mission is primarily to create this local space for many persons to participate freely in the affairs of the country. To portray international human rights monitoring as an interference in sovereignty completely belies the fact that the sovereignty of the people has been lost by massive violence and intimidation. And the very purpose of an international monitoring mission on human rights is to revive this internal capacity. The experiences from Cambodia, East Timor and Nepal shows how effective the international human rights intervention can be to revive local spirit and to unleash local resources.
Not to overestimate the Human Rights Commission of Sri Lanka
(g).i. Falsification on human rights protection in Sri Lanka often happens when the state claims that greater responsibility will be given to the HRCSL. In fact according to the words of the present HRCSL Chairman S. Ananda Coomaraswamy, [This commission has] ‘neither legislative, executive or administrative or judicial powers’… commission has no enforcement powers.’ While the commission claims thus, the government at international forums claim to put all the burden of human rights protection on the Human Rights Commission. Sometimes the suggestion is that the law will be amended to improve its powers.
However, the AHRC’s position consistently expressed over several years that an ombudsman like institution such as the HRCSL cannot be a substitute to police criminal investigations, prosecutions and responsibilities of the judiciary. In the developed liberal democracies the ombudsman function was created only after solid foundations for police investigations, the prosecutory functions and judicial responsibilities were established. The functions of the ombudsman can be performed only on the basis of the infrastructure of justice already well laid. It is unfortunate to note that even the local and international lobby on human rights in Sri Lanka has failed to expose the great fallacy of trying to attribute an important role to the HRCSL for human rights protection.
It can play some marginal role like for example visits to places of detention, assistance to victims in early stages of their violations by helping them with medical, psychological and legal assistance and by playing the role of a spokesman which can be a critical voice on the defects of the justice system in dealing with protection and promotion of human rights. However, at present the HRCSL does not have moral or constitutional credibility as it has been appointed against the provisions of the constitution itself.
