When the Experts Panel of the European Union (EU) released its Interim Report in August 2009 on the question of whether to renew GSP Plus benefits for Sri Lanka, it signaled an early warning of trouble to come. Sunny optimism about regaining EU GSP Plus The report expressed considerable dismay in regard to multiple violations [...]


That pesky problem of calling a government to account


When the Experts Panel of the European Union (EU) released its Interim Report in August 2009 on the question of whether to renew GSP Plus benefits for Sri Lanka, it signaled an early warning of trouble to come.

Sunny optimism about regaining EU GSP Plus
The report expressed considerable dismay in regard to multiple violations of the Rule of Law. This was opined to offend the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT) and other Cruel, Inhuman or Degrading Treatment of Punishment and the Convention on the Rights of the Child (CRC). From that point onwards, the Rajapaksa Presidency went down an unpleasantly slippery slope to the final EU decision refusing the continuation of the benefit.

Let us leave aside for the moment the argument as to whether adherence to the international human rights order should be used as a veritable bargaining tool to obtain what amounts to a duty free or trade benefit having direct impact on thousands of lower income workers. One may support or oppose this approach with equally excellent points of views for or against as the case may be. But the stubborn realpolitik is that this is the standard to which not only the Government of Sri Lanka but also EU officials themselves must conform if the facility is to be restored.

Currently, the Government has expressed sunny optimism that it will regain the GSP Plus backed by even sunnier assurances of EU officials in Brussels. Therefore it is relevant to examine how Sri Lanka’s proposed Counter-Terror draft law meant to replace the Prevention of Terrorism Act (PTA) offends every substantial principle of international law underlying the Experts Report on which the European Union’s decision to discontinue the GSP Plus benefit was based.

Confessions under the PTA
Incidentally it is a matter of relief that the proponents of this draft within the Government as well as those co-opted into government ranks have now finally conceded ownership of this atrocious document. At one level, if any were uneasily reluctant to take the bull proverbially by the horns and rigorously critique the draft on the basis that its exact ‘status’ was unclear, they may now be reassured. Mortifyingly this is indeed what has officially been proposed by the ‘yahapalanaya’ Government as the basis for a new Counter-Terror law for Sri Lanka.

Returning to substantive issues, the PTA has long been foremost on the ranking of laws offending constitutional and international standards. Its allowing of confessions to police officers as forming a basis for convictions was a particularly sore point. This allowance has been continued by the Counter-Terror draft albeit tossing a sop or two by stipulating that the prosecution has to prove the voluntary nature of the confession and that a government forensic medical specialist must examine the suspect, supervised by a magistrate.

But as pointed out earlier in these column spaces, this so-called protection is farcical. From the Supreme Court downwards, the sheer inefficacy of magisterial supervision in custodial torture cases has been adversely commented on and documented in multifarious instances. And the prosecution’s burden to prove the ‘voluntariness’ of the confession is no weighty task given the frighteningly secretive circumstances in which these confessions customarily take place.

Not relying purely on judicial discretion
Granted these are questions that have perplexed the best of our judges. The division of opinion therein is best seen in Theivandran’s Case (2002) where then Justice C.V. Wigneswaran, writing a 26 page opinion, declined to accept the argument that confessions obtainable under the PTA are solely sufficient to convict an accused in the absence of corroborative evidence.

His categorical question was as to why, when the ordinary law of the country shuts such confessions out, are they allowed under what amounts to a ‘special politically motivated law’? This view was not shared by his colleagues on the Bench including (surprisingly) the late Justice MDH Fernando. However all the judges concurred that the particular confession in issue lacked ‘congruity and consistency.’ Consequently the conviction was not allowed to stand. But the fragility of this outcome is well seen in the fact that the Court of Appeal examining the same facts had concluded that there was nothing wrong in regard to the integrity of the confession.

The ruling of the appeal court was set aside by the Supreme Court in this instance. Nevertheless, given a different Bench at the time, the matter may well have gone the other way. This is indeed what happens in the majority of cases under the PTA. Herein lies the danger in allowing individual judges to decide rather than laying down a firm principle of law disallowing such confessions. Sri Lanka’s age old Criminal Procedure Code excludes confessions to police officers as a general principle precisely on the reasoning that the possibility of coercion is too real to even take the risk.

An overriding principle at stake
In 2009 the EU Experts underscored Sri Lanka’s problems in theory and in practice. Citing critical national assessments including this columnist’s analyses in this column and elsewhere, the Experts pinpointed not only theoretical failings but also concluded that even legally secured rights are not practically implemented.

For example, the excellent Anti-Torture Act (1994) giving effect to the UN Convention Against Torture was frustrated due to bad investigations, lackadaisical prosecutions and a sluggish legal system. That was the case then. This remains the same now.
Consequently – and even if wiser thought prevails with a well drafted law replacing the PTA – a slick ‘ticking off the boxes’ will not do. Instead, this Government has to ensure practical changes in implementing legal rights. If the Rajapaksa State was ‘punished’ for its callous obduracy by the EU, then the Sirisena-Wickremesinghe alliance must surely be held to that same standard. Absent this, the outcome will not be kind.

No room for crippling conjecture
In other words, if the EU GSP Plus privilege is restored sans actual structural reform, it will only worsen the creeping fears of some that the Rajapaksa Presidency was penalized for its refusal to dance to the tune of international pied pipers rather than failure to ensure the betterment of the people. There must be no room be left for such crippling conjecture. Its impact will only have negative repercussions on Sri Lanka’s internal reform process.
That would be most unforgivable.

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