Columns - FOCUS On Rights

Convenient bogeys and the real fear
By Kishali Pinto Jayawardene

Some months back, these column spaces carried a reflection titled 'Why is the Government so terrified of the 17th Amendment (to the Constitution)?" (see The Sunday Times, 'Focus on Rights, 8 March 2009).

In this purportedly 'post-conflict' stage and in a context where the Rajapakse administration does not need really to demonstrate that it has overwhelming public support, this pithy question carries more relevance than ever. What has the government to fear from an independent Police Commission or an Elections Commission if it can carry the vote of the people so easily? This question deserves to be asked time and time again, unrelentingly as it were, for the disregarding of this constitutional amendment increasingly portends far more than what is seen on the surface.

What of the Elections Commission?

Whatever the electoral results that may emerge over the weekend in the South, this is an election that should have been conducted under the watch of an Elections Commission, the members of which should have been appointed by the Constitutional Council.

The authority exerted by the Elections Commissioner, is both in theory and in practice, faltering. At one point, we had the incumbent continually pleading that he be allowed to step down from his post, including famously at the conclusion of the 2005 Presidential polls where he addressed a direct - and later disregarded - appeal to the victorious candidate, now the current President.

He has also pointed to various lacunae in the election laws that ought to be remedied in order to strengthen his hand in the minimum. These reforms still remain pending. His pleas that he be released, meanwhile appear to have faded away probably due to the conviction that they will have little effect anyway. This situation is incongruous indeed.

Negation of an unparalleled constitutional experiment

But more than any other constitutional commission, it is the National Police Commission that ought to be restored, not only to ensure that the police act properly during election times but also to protect law abiding police officers themselves from being transferred out due to the whims and fancies of enraged politicians who find that these police officers do not jump to obey when the whip is cracked. Undoubtedly it was this Commission's attempts to bring order back into the police service during its first term, (notwithstanding some initial blundering on its part), which pricked politicians into realising the extent of what they themselves had unwittingly perhaps agreed to.

The gradual - and successful - destabilizing of the 17th Amendment was an inevitable result thereafter. It was not a largely toothless National Human Rights Commission or even the Public Service Commission which created disquiet in government ranks.

Rather it was the Police Commission which had been given constitutional and regulatory powers that were unparalleled in the whole of Asia. This was a novel constitutional experiment which, if worked properly, may have been an exemplary lesson for the region. Unfortunately, it was not to be. So we continue to have the Angulana incident, the Nipuna incident and countless others concerning victims who are not fortunate enough (perversely as it were) to make it to the front pages of the country's newspapers. Killings of unarmed suspects in police custody, most disturbingly applauded by sections of the public, still continue.

If, as is sometimes contended, internal disciplinary measures put into place by the Inspector General of Police have been sufficient to contain this problem, we certainly see no hard evidence of this. The Police Commission may not have been a miracle cure. However, with some careful and sensitive finetuning, this constitutional mechanism may have redressed some of the more serious problems currently affecting our law enforcement processes.

Political dysfunction on the 17th Amendment

But this is not to say that such devilment in regard to the 17th Amendment is the sole preserve of the Rajapakse administration. The main opposition party, the United National Party itself dragged its feet on the 17th Amendment with only one or two solitary voices to the contrary. On its own part, the Janatha Vimukthi Peramuna also deviated from its initial commendatory stand of forging a political consensus on the 17th Amendment to follow a policy of deafening silence in later years. It is only now - quite belatedly- that both parties have woken up to the signal importance of this constitutional amendment, definitively for their own political gains rather than due to an overwhelming commitment towards good governance.

Exposing of the 'bogeyman'

Let us make no mistake about this. The subversion of our governance processes cannot be hidden any longer under the convenient bogey of the 'virtual' reawakening of the LTTE, the uproariously silly Channel 4 episode touted by a group of journalists whose credentials are dubious or the equally uproarious notion that the entirety of the West is conspiring against us, though propagandists may try to tell us so. We do not need the European Commission to tell us that our constitutional systems are not being worked properly.

This we know for ourselves. We also know when we are sought to be intimidated, (spectacularly unsuccessfully as this may be), by those who delight in doing hatchet jobs in the belief that this would please their political masters. These are dangerous tactics for they spur natural and extreme anger with little disregard for consequences.

Whatever may be to the credit of the government for having defeated the LTTE, and credit must undoubtedly be given for this, surely it is time that we wake up to the reality that this country is teetering towards one-party authoritarianism with its inevitably underlying dismissal of the Rule of Law and the Constitution? We may have experienced this before in past decades but each time has left us more depleted than ever, in terms of our national unity and collective progress.

Do we really have to go through this all over again?

Comprehensive documentation of widespread torture and the decline of the rule of law in Sri Lanka

By Simon Ankjaergaard

(October 07, Borgergade -DK- Sri Lanka Guardian)

At a special side event at the UN Human Rights Council on Tuesday 29 September the RCT and the International Bar Association Human Rights Institute (IBAHRI) presented thorough a groundbreaking documentation relating to the decline of rule of law and the prevalence and causes of torture in Sri Lanka.
The side event took place during the UN Human Rights Council's 12th session.

The event focused on a recent publication by Kishali Pinto-Jayawardena, a Sri Lankan attorney-at-law and columnist to the Colombo based The Sunday Times who had recently authored a comprehensive 240 page long analytical study relating to the decline of the rule of law, 'The Rule of Law is in Decline in Sri Lanka - Study on the Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka.'

The main conclusions of the report are:

  • Widespread torture by law enforcement personnel takes place as part of an established routine, and there are several cases of intimidation of victims and witnesses.
  • Basic legal guarantees intended to protect due processes and ensure a speedy trial are increasingly under pressure in national legislation and have been considerably weakened by the prevailing Emergency Regulations. Very few of these legal safeguards are adhered to in practice by law enforcement officers, including the right to information about the reasons for the arrest, the right to legal representation, and the 24-hour time limit for judicial hearing after arrest. Furthermore, there are extreme time delays in forwarding indictments and during trial.
  • Although torture has been criminalized in the Convention against Torture Act, the Act does not satisfy Sri Lanka's obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The deterrent effect of the criminalization of torture has been minimal. There have only been three convictions since 1994 and more than 17 acquittals. The majority of prosecutions are still pending in the High Courts.
  • There is no functioning independent system to deal with complaints of torture and other forms of cruel, inhuman or degrading treatment or punishment committed by law enforcement officials, resulting in impunity and the lack of accountability. The lack of disciplinary action against law enforcement officials is one of the main attributing factors to torture.
  • A fundamental lack of separation of powers, and persistent political interference from the Executive with otherwise independent institutions has led to politically motivated judicial decisions and a lack of accountability for human rights violations, including torture.
  • There is a fundamental lack of resources throughout the public sector, including severe lack of infrastructure, personnel and proper investigative equipment.
  • Sub-standard conditions, which prevail in places of detention, including severe overcrowding, lack of sanitation, food and drinking water, as well as medical treatment can amount to cruel, inhuman or degrading treatment, or even torture.

Several of the findings in this Study are supported by a report from IBAHRI, 'Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka' - published in May 2009 after a fact-finding mission by a high-level IBAHRI delegation. Both reports point to patterns of intimidation routinely expressed against members of civil society, including journalists, academics and NGO workers, who are perceived to be critical or challenging of the Government or its policies. The independence of the judiciary is found to have been under severe threat during the past decade.

The two reports identify several gaps in the legal and institutional infrastructure of Sri Lanka, which have had a detrimental impact in the functioning of the justice system in Sri Lanka. Recommendations in this regard include the following:

  • The government of Sri Lanka should comply with its international obligations to protect and promote the independence of the legal profession and the safety of lawyers.
  • Police investigations into the threats and attacks upon lawyers and journalists should be expedited and should be independent, thorough and effective.
  • The appointment, transfer, dismissal or retirement of judges at all levels should be determined by a transparent and accountable system. All extraneous influences on judicial decision-making should be strongly discouraged and successfully repelled.
  • Criminal legislation touching on freedom of expression, including the Prevention of Terrorism Act and the Emergency Regulations, should be carefully reviewed to ensure that it is in conformity with Sri Lanka's international obligations.
  • The Government should repeal any aspects of the Emergency Regulations and the Prevention of Terrorism Act, which are not strictly necessary and proportionate to the apparently decreasing security threat currently being faced, with particular regard to basic due processes and guarantees.

The writer is a Danish journalist and is Communication Officer, the Danish Rehabilitation and Research Centre for Torture Victims, Copenhagen, Denmark.

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