Recovering the authority of public institutions Recovering his book makes a shocking revelation. It Recovering the authority T confirms that all those who suffer human rights abuses face the same fate that the assassinated journalist, Lasantha Wickramatunga, predicted for of public institutions himself in addressing the President of Sri Lanka. "In the wake of my death I know you will make all the usual sanctimonious noises and call upon the police A resource book on law and human rights in Sri Lanka to hold a swift and thorough inquiry. But like all the inquiries you have ordered in the past, nothing will come of this one, too." This book is the product of nearly 15 years of work of many persons. Literarily, thousands of persons were interviewed and hundreds of cases were pursued over the course of several years. This journey took us to magistrate’s courts, high courts, the Court of Appeals, the Supreme Court and on some occasions, the United Nations Human Rights Committee. On all these occasions we had the opportunity to observe how the government of Sri Lankan and its agencies acted in the face of the serious complaints raised in these cases. The basis of this book is the detailed records of these cases. Two hundred cases of police torture, mostly from the South, have been summarised here. During most of this period, parts of the North and East were not under the control of the government of Sri Lankan. However, these cases are from the areas under government control and from places far away from the conflict. Therefore, they speak of a far greater crisis of the Sri Lankan political and legal system than the ethnic conflict. For many years the AHRC has commented on the crisis of the rule of law system in Sri Lankan and these views have been shared with a large audience for a considerable time. The analysis of the problem has found the agreement of almost everyone, except those who are professionally obliged to deny that human rights violations exist in the country. No part of this book can be said to be an exaggeration. Perhaps on the other hand, it may be justified to say that these revelations are, in fact, an understatement of the actual situation. AHRC Basil Fernando ASIAN HUMAN RIGHTS COMMISSION 19/F Go-Up Commercial Building 998 Canton Road, Mongkok, Kowloon, Hong Kong Telephone: (852) 2698-6339 Fax: (852) 2698-6367 E-mail: [email protected] Web site: www.ahrchk.net ASIAN HUMAN RIGHTS COMMISSION 2009 Recovering the authority of public institutions A resource book on law and human rights in Sri Lanka Asian Human Rights Commission 2009 Asian Human Rights Commission 2009 Printed in Hong Kong ISBN 978-962-8314-44-7 Published by Asian Human Rights Commission & Asian Legal Resource Centre 19/F, Go-Up Commercial Bldg 998 Canton Road Mongkok, Kowloon Hong Kong SAR, China Tel.: (+852) 2698 6339 Fax: (+852) 2698 6367 Email: [email protected], [email protected] Websites: www.ahrchk.net, www.alrc.net Compiled by Nick Cheesman The photographs on the cover are those of the former High Court Judge, Sarath Ambipitiya assassinated on November 19, 2004; a witness who was to give evidence in a High Court trial against several police officers, Gerard Mervyn Perera, assassinated on November 21, 2004; a complainant in a bribery case and a petitioner in a fundamental rights application against torture by several police officers, Sugath Nishanta Fernando, was assassinated on September 20, 2008; and a prominent journalist, who was harassed, brutally assaulted and whose house was sprayed with gunfire, Lasantha Wickramatunga, assassinated on January 8, 2009,. Their lives and their tragedies reflect the crisis of justice in Sri Lanka. Layout and design by Clear-Cut Publishing & Printing Co. Printed by Clear-Cut Publishing & Printing Co. A1, 20/F, Fortune Factory Bldg 40 Lee Chung Street Chai Wan Hong Kong SAR, China Contents Introduction: Contrasts between a developed legal system and the Sri Lankan legal system .................................................................................................. v COMMENTARY How the supremacy of law was lost ............................................................... 1 A point-by-point review of state inaction on the recommendations of UN agencies: Recommendations of the Working Group on the Universal Periodic Review ............................................................................................... 25 Recommendations of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment ................................... 38 Recommendations of the Working Group on Enforced or Involuntary Disappearances ................................................................................... 47 Recommendations of the Human Rights Committee on communications under ICCPR ..................................................................................... 50 Five overlapping conflicts and their implications for the Sri Lankan legal system ........................................................................................ 55 A study about the processes and strategies of prevention of torture in Sri Lanka ............................................................................................ 71 A ‘praxis’ perspective on subverted justice and the breakdown of rule of law in Sri Lanka .................................................................................. 96 Police reform initiatives within a dysfunctional system .................................. 129 Promoting international norms and standards in the context of dysfunctional justice systems .............................................................. 144 CASES Three recent case studies ............................................................................... 201 1. A judgment not based on evidence: Lalith Rajapakse case ........................ 203 2. Attacks on a human rights defender: J. C. Weliamuna ............................ 233 v 3. Death threats against lawyers: The Mahason Balakaya............................ 255 Two hundred cases of torture and abuse in Sri Lanka ................................... 267 APPENDIX Memorandum on the compatibility of the practice of bringing fabricated charges with international human rights standards, national jurisprudence and international standards on policing ....................... 527 v Introduction: Contrasts between a developed legal system and the Sri Lankan legal system Basil Fernando, Director, Asian Human Rights Commission t one time Sri Lankans talked about their legal system with pride. A Most books, articles and speeches on it began with self-congratulatory statements. In 1986, A. R. B. Amerasinghe wrote in one such work that, “The spirit of Justice in our Supreme Court is invincible and the independence of the Court is inviolable. And there is little doubt that it shall always be so, for that has been the desire of those who have served it from the Bench and at the Bar and that has been and, above all else, is the will of the Sri Lankan people.” (Supreme Court of Sri Lanka, p. 4) However, another Supreme Court judge, K. M. M. B. Kulatunga, gave a very different picture in Disorder in Sri Lanka, suggesting that the system had suffered a tremendous downfall, not unlike that of Humpty Dumpty. This perhaps better characterises the perceptions of almost everyone involved in the system in some way today, be they in a professional capacity or as a party in a case. Whatever the past, Sri Lanka’s present-day justice system in fact endangers, rather than protects, lives and liberty. This view of the system as a threat to Sri Lankan society is no longer radical. It is shared among people in every corner of society. What the country is looking for now, is a future. A future that carries on with the mistakes and abuses of the present will not only be at least as bad but may even be far worse. To avoid that type of future, we need to clearly articulate the problems of the past and present, so that we can face them head-on. To do that, we need to accurately document the features of the legal system and plainly state how it looms large in the national tragedy. v Recovering the authority of public institutions This is the opposite approach to law and its implementation that has often been adopted in Sri Lanka, where discussion begins with the introduction of ideals rather than realities. Sometimes models from different jurisdictions are discussed. What is missing from all that is any detailed description of how and why the system fails. The refusal or reluctance to go into the causes and features of this systemic failure means that we have not built up a body of knowledge that can be used to inform and propose reforms. This book is a small step in that direction. It has been prepared specifically to give a vivid picture of the system and encourage production of more such work. The picture is ugly, given the extremely inhumane effects of the system over the past couple of decades, but in order to change its appearance it is vital that we first face it and acknowledge it for what it is. Savage use of law The law can be used savagely either by making savage laws or by using civilised laws in a savage way. In Sri Lanka, poor institutional development meant that for a long time civilised laws were abused. What was given with one hand, the other soon took away. The protections contained in the Criminal Procedure Code and Evidence Ordinance could be whittled down or denied. It is said that Lord Thomas Macaulay, who chaired the drafting committee of the Indian