ISSN: 1391 - 0531
Sunday June 08, 2008
Vol. 42 - No 54
Columns - Focus on Rights  

Impunity and the rule of law

By Kishali Pinto Jayawardena

Impunity is a contested term and may mean many things to many people. Basically however, the term 'impunity' means simply a fundamental failure of the legal system to address right violations consistently and systematically. It is obvious that such a situation leads to the failure of implementation of basic standards relating to the Rule of Law. To my mind, there is no doubt that this is the current situation prevalent in the country and indeed, that this is a problem which goes far beyond the conflict in the North/East. Indeed, it is of such a pervasive nature that even once the conflict - if indeed this can ever happen in today's scenario - ceases, the substantial deterioration of Rule of Law standards will take decades to remedy.

Critics may question as to how this can be so. From time to time, we hear of judgments of the Supreme Court for example, elaborating on rights of citizens as for instance recently when the Court, in the judgment of the Chief Justice, ruled that the mass scale eviction of lodgers of Tamil ethnicity in Colombo in a move initiated by the Defence Ministry which had these lodgers being packed willy nilly into buses and sent away from the capital, was unconstitutional. We also had a recent judgment where it was ruled that permanent checkpoints in the city had no legal rationale underlying their establishment and therefore, needed to be dismantled.

And apart from constitutional guarantee against torture/arbitrary arrest and detention, there are monitoring mechanisms of human rights abuses apparently in place such as the Human Rights Commission of Sri Lanka and (for the past one and a half years), a Presidential Commission of Inquiry examining grave human rights violations. We also have various laws with appropriately grandiose titles such as the Convention Against Torture Act and more recently, the International Covenant on Civil and Political Rights Act.

So - the argument goes - are not these measures sufficient to redress human rights abuses? In a situation where is severe conflict and the government's opponent, namely the Liberation Tigers of Tamil Eelam is a ruthlessly formidable foe with no respect for rights of civilians, what more can indeed be expected of the government?

This is how a government apologist would present his or her case. However, this is an argument that does not sustain itself to any extent whatsoever. The problem is not of such a nature that can be addressed by fact finding Commissions of Inquiry while an unconstitutionally appointed Human Rights Commission of Sri Lanka which has deprived itself of much of its authority and legitimacy during the past year is best ignored. Judgments of the Supreme Court on rights abuses have little deterrent effect and are mostly ignored. The issue however is the legal framework which permits and indeed, actively encourages crimes such as extra judicial executions and enforced disappearances has governed Sri Lanka for the past few decades.

In view of state complicity in acts of terror, it is not surprising that good investigations and prosecutions are rare and, if at all only against junior officers. The rationale is that even if grave crimes were committed, these were in situations of extraordinary stress for the average soldier/police officer and therefore should not be measured against a high standard of accountability. Correspondingly, the lack of political will in pursuing such cases to a logical conclusion is clearly seen, whether they concerned enforced disappearances in the South in the eighties or in the North/East.

Even in instances where political will was manifested at the highest levels, the obduracy of the military establishment prevented it being translated into concrete action. A good example of this was in January 1996 when then President Kumaratunge directed the Army Commander to place 200 service personnel on compulsory leave, following their repeated involvement in gross human rights abuses as evidenced in the Disappearances Commissions Reports. However, this direction was ignored.

As much as judgments of the Supreme Court passing strictures on police officers found implicated have been ignored by and large by the police establishment, this bypassing of judicial instructions have been evidenced in other cases as well. For example, in several habeas corpus applications in the Court of Appeal, the Court specifically recommended that the respondents in the cases who were found responsible for the causing of the disappearance of the corpus should be prosecuted. However, these directions have all gone unheeded.

Given the extraordinarily secret nature of these crimes, proving individual responsibility in many cases is difficult if not impossible. In this context, it is necessary therefore to incorporate legal provision in our Penal Code that recognizes the act of enforced disappearance coupled with recognition of the doctrine of command responsibility, imposing responsibility upon the officer in charge of the relevant camp/police station where the victim was last seen. This principle has, in fact, been articulated by Sri Lanka's courts (see Leeda Violet & Others v Vidanapathirana & Others, (1994) 3 Sri LR, 277 and Kanapathipillai Machchavallavan v OIC, Army Camp, Plantain Point, Trincomalee and Others (SC Appeal No 90/2003, SC (Spl) L.A. No 177/2003, SCM 31.03.2005).

In some instances, human rights monitors established by law have identified perpetrators but no action has been taken. This problem of non-indictments is not specific to cases of enforced disappearances but is well seen in instances of torture cases from the South as well, (involving the torture of Sinhalese as well as Tamil persons) by Sinhalese police officers. These cases have been well documented.

Meanwhile, interminable delays in filing indictments, delays in the non-summary inquiry and further delays in the substantive trial proceedings are common factors in cases of grave human rights violations. It is common for example for the lapse of several years to pass before the first step of filing indictment is taken and for delays to be present thereafter in the trial process. This pattern is again commonly seen in the cases of torture of ordinary persons in the South; in cases filed under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (hereafter Anti-Torture Act of 1994, indictments are sometimes pending for almost two years without being served on the accused.

This column has said repeatedly that the question of prosecutions of those responsible for mass scale disappearances in Sri Lanka cannot be dealt with effectively unless there is substantial overhaul of the existing legal and prosecutorial system. In the overwhelming number of cases from the North as well as from the South, a predominant factor is the inability to identify individual culpability thus making the perpetrators exempt from the sanctions of the criminal law.

The liability of the State for mass scale disappearances and extra judicial executions, (even though individual responsibility may not be determined in particular cases due to problems of identification), needs to be secured through appropriate changes to the criminal law that holds the superior officer responsible in instances of proved unlawful custody in the context of a specific crime of enforced disappearances.

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