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

“An interim report on Sri Lanka’s compliance with international treaties, requested by the European Commission and prepared by a panel of independent experts comprising well known international jurists, stated that the three main international treaties, namely the International Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child, was not being implemented in Sri Lanka.”
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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 and 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 focussed 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 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 process 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 Kishali Pinto-Jayawardenas findings are being 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 in the spring of 2009 by a high-level IBAHRI delegation. The delegation finds that there is an increase in attacks against lawyers filing fundamental rights applications, representing terrorist suspects and taking anti-corruption cases, which has created an escalating climate of fear amongst the legal profession. The threats and attacks are not considered to be isolated events but – as Kishali Pinto-Jayawardena also points out – form a pattern 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.

As is the case of Kishali Pinto-Jayawardena’s study, the IBAHRI report identifies several gaps in the legal and institutional infrastructure of Sri Lanka, which has had a detrimental impact in the functioning of the justice system in Sri Lanka. IBAHRI states that the lack of independent oversight makes the judiciary vulnerable to political influence and jeopardizes its independence. Another matter of concern for the IBAHRI is the prevailing Emergency Regulations and the Prevention of Terrorism Act, which have had a negative impact on the right to freedom of expression, both for lawyers and for journalists, and also impinge on several fundamental legal guarantees, in particular the principle of legality, pre-trial rights during arrest and detention and due process guarantees in criminal cases.

Both Kishali Pinto-Jayawardena and IBAHRI present a series of recommendations. Among the major recommendations are, that:

* The government of Sri Lanka complies with its international obligations to protect and promote the independence of the legal profession and ensures that lawyers are able to perform all professional functions without intimidation, hindrance, harassment or improper interference.

* Police investigations into the threats and attacks upon lawyers and journalists are expedited and are independent, thorough and effective.

* Preventive steps are taken to ensure the security of lawyers under threat.

* Sri Lanka returns to a system where appointment, transfer, dismissal or retirement of judges at all levels are determined by a transparent and accountable system.

* A judicial environment is created where all extraneous influences on judicial decision-making are 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 repeals 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 process guarantees.

The findings in the reports by Kishali Pinto-Jayawardena and IBAHRI have been further actualized in the light of the ongoing negotiations between the EU and Sri Lanka on the GSP+ trade scheme. The GSP+ is a unilateral, preferential trade scheme from the EU to Sri Lanka allowing business in Sri Lanka to export 7,200 items to EU, duty free. The future of the GSP+ depends on how well the Sri Lankan government is seen to implement 27 international conventions on human rights, labour rights and environmental standards.

An interim report on Sri Lanka’s compliance with international treaties, requested by the European Commission and prepared by a panel of independent experts comprising well known international jurists, stated that the three main international treaties, namely the International Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child, was not being implemented in Sri Lanka. The report quotes from the IBAHRI report as well as from Kishali Pinto-Jayawardena’s writings to illustrate current concerns with the failure of the country’s legal and justice institutions. The findings were debated in the European Parliament’s sub-committee on human rights Thursday 1 October. The report concludes that Sri Lanka is not moving in the right direction at all.

(The writer, Communication Officer, the Danish Rehabilitation and Research Centre for Torture Victims)

-Sri Lanka Guardian