Degenerative duplicity and a government’s response

“Out of the many outright untruths and subversions in this GOSL response, perhaps this is one of the most blatant examples. Instances of lawyers being threatened, intimidated and physically attacked when they insist on seeing suspects at police stations have been documented in numbers.”
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By Kishali Pinto-Jayawardena

(November 22, Colombo, Sri Lanka Guardian) Last week, this column outlined the contextual background to the Government of Sri Lanka’s (GOSL) formal response to the critical European Commission report on the factors negatively affecting the renewal of the GSP Plus trade privilege. It made the point that the Government’s bitter accusation that this was a ‘tit-for tat’ reaction to its resolve to militarily finish the LTTE masked a far more unpalatable truth. In other words, it was the administration’s extreme arrogance in openly discarding international treaty obligations as in its stubborn ignoring of domestic constitutional imperatives during the last three years that were primarily to blame for this impasse.

Misrepresentations of law and of fact

The column also made the point that the Government’s formal response contained misrepresentations of the law as well as the factual position in several of its claims. However, given constraints of space, only two substantive issues were dealt with last week. These were firstly the incorrect assertion that the ‘prerogative of executive clemency’ or a presidential pardon (in the context of the Tissainayagam case) could be handed down only after a decision was reached after the appeal process was exhausted (see page 32 of the annexure to the response, observation no 48, which is contra Article 34(1) of the Constitution).

In any event, this only showed the GOSL’s adroit sidestepping of the central issue in this case, which concerned the ruthless wielding of emergency regulations to sentence a journalist to twenty years imprisonment. The current situation is that the printers of this journal have now been released due to the Attorney General’s Department withdrawing all charges against them (we assume presumably on lack of evidence) while the journalist stands convicted and sentenced.

Last week’s column also met head on, the Government’s claim that it was not necessary to enact the right to life into the constitutional provisions or as part of the criminal law as for example, by securing the right not to be disappeared accompanied with commensurately severe penalties as international human rights standards decree.

Absence of legal representation for suspect glossed over

This week’s column takes this debate further by examining some further issues in the GOSL’s response. In the first instance, a most startling lacuna in our law is that a suspect in police custody does not have a right of access to a lawyer of his or her own choice. As literally hundreds of documented cases in Sri Lanka have shown us, the period within which a suspect is kept in police custody is typically the time when the suspect’s vulnerability to torture is extremely high. Access to an independent lawyer is therefore of the highest importance. Yet, this significant lacuna which has been commented upon adversely by Professor Manfred Novak, the UN’s Special Rapportuer on Torture, is conveniently glossed over by a fatuous remark of the GOSL, (see page 15 of the annexure, observation number 14) that in practice, lawyers attend police stations upon being notified of arrest of a person and police officers do not prevent such attendance.

Out of the many outright untruths and subversions in this GOSL response, perhaps this is one of the most blatant examples. Instances of lawyers being threatened, intimidated and physically attacked when they insist on seeing suspects at police stations have been documented in numbers. While public reaction has compelled disciplinary action against abusive police officers in the exceptional case, even so, only the most minimal action is taken against the offenders. The National Police Commission, in its first term (when constitutionally appointed) sought to systematically change pervasive patterns of police behaviour in this regard. However, their efforts came to naught when the 17th Amendment was deliberately subverted by the current administration.

Fate of the 17th Amendment

Meanwhile the reason given in the response as to the fate that has befallen the 17th Amendment itself beggars belief. It is claimed now in familiarly convoluted language, (see page 17 of the annexure, observation number 28), that this Amendment amounted to an abdication of parliamentary power to non-elected persons. The Supreme Court determination on the constitutionality of this amendment is thus most unceremoniously brushed aside. Not content with this, it is also stated most astonishingly that persons appointed to the offices specified thereto cannot be considered to be independent due to the fact that they are appointed by the ‘agents of the respective political parties/persons authorized to nominate members to the Constitutional Council.” What better example do we have of a Government’s insistence on summarily disregarding constitutional norms while simultaneously (if not unconvincingly) protesting its own innocence?

Concerns relating to Judicial Independence

Then again, we have a whole host of paragraphs devoted to defending the Office of the Attorney General (that have already been well met in critiques elsewhere) as well as an excruciatingly laughable response in relation to concerns expressed that the judiciary in Sri Lanka is vulnerable to political pressure. It is quite amusing therein that, the concern expressed in the European Commission report that former Chief Justice Sarath Silva used the administration of case allocation to sideline senior judges (which is a matter of record, a visible casualty in this regard being one of the Court’s most respected judges, the late Justice Mark Fernando) has been responded to by a mere denial and a reference to an old legal precedent.

The GSP Plus trade privilege and Rule of Law

Unfortunately, this GOSL response, which is studded with examples of the above nature virtually crying out for precisely targeted rebuttals, cannot be dissected further due to lack of column space this week. That said however, the manifestly desperate situation that mainly women garment workers of a low-income background will face if the GSP Plus privilege is not renewed is, in fact, the reason as to why many activists had been initially reluctant to join this fray. However, the aggressively counter productive propaganda unleashed through pro-government media apologists on this and other fronts has invited its own inevitable reaction. Could it have been thought that those of us who engage in wholly legitimate critiques of deliberately anti-human rights and anti-democratic policies followed by a particular political administration, (whichever colour this may be), could be cowed into silence by crude propaganda such as this? Such sadly misguided beliefs may indeed now be laid to rest.

And insofar as the pending renewal of the GSP Plus trade privilege is concerned, it is clear that Rule of Law concerns predominate. In the end result, if consequences follow due to our non observance of the same, the blame thereof needs to be laid on the shoulders of the Rajapakse administration and none other.

-Sri Lanka Guardian