Degenerative duplicity and a government’s repose – Part III

“Presidential Commissions of Inquiry need also to be abandoned as an alternative to improved criminal justice processes. The fate that befell the 2006 Udalagama Commission of Inquiry should be the last and most telling example as to why these bodies aggravate the problem rather then resolve it.”
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Previous Parts: Part One | Part Two

By Kishali Pinto-Jayawardena

(November 30, Colombo, Sri Lanka Guardian) In this final column deliberating on the Government of Sri Lanka’s (GOSL) formal response to the European Commission’s (EC) Report on the factors negatively affecting the renewal of the GSP Plus trade privilege, some remaining questions that put the Government on inquiry are dealt with.

This response itself (undeniably) has its interesting points. Unlike in the GOSL’s reports to the United Nations Treaty bodies which are not only long delayed but also hedged around by a welter of often irrelevant information which makes extracting the core issues somewhat of a complicated task in itself, this response is different. In the annexure, (which is the crucial part of the response), specifying the Government’s position, the answers therein have to specifically meet each and every point of concern raised by the EC. Consequently, the GOSL’s answers themselves raise further relevant questions in relation to the manner in which rights to life and liberty of Sri Lankan citizens are protected.

Need to give reasons for arrest under emergency

One good example is the fact that, in observation no 49, it is sought to be categorically affirmed that ‘even under Emergency Regulations, the reasons for arrest must be informed.” The failure to cite however, the relevant regulation stipulating such a requirement in this paragraph, is by no means accidental. By itself however, this is an astonishing claim and no doubt, would warm the cockles of the hearts of all those persons who have been quite arbitrarily arrested during recent years on the pretext of being involved in terrorist activities but without any reasons being given at the relevant time, many of whom are still languishing in prison.

Out of these cases, one of the most high profile recent instances concerned the editor of the Sudar Oli newspaper who, as would be recalled, was dragged away kicking and screaming when he was literally abducted by a group of persons including unidentified individuals during his attendance at a private function. Let alone giving reasons for the arrest, the very fact that it was a formal arrest emerged only later when media groups protested vehemently. At that time, these groups demanded that arrests should be effected with regard for due safeguards including the right to be informed of the reasons for arrest. The Government remained studiously silent as to whether such a requirement was part of the current emergency regulations as opposed to non binding directives issues by the President. This is just one case and the fact that the Sudar Oli editor was released unharmed was wholly due to the pressure being brought to bear on the authorities by media groups and bodies. As opposed to this, there are scores more cases where the victims have not been so lucky.

Absence of actual deterrence

So now we are emboldened to hear the Government actually affirm that the safeguard to give reasons for arrest are part of the emergency regulations. We would be even more benefited by being informed of the manner in which this safeguard is being practically observed and further, what action is being taken against those who violate this most necessary precaution. To simplify the matter even more, it would be encouraging to be informed of even one case where an arresting officer has been punished for disobeying this condition as would be the case of it were indeed, an enforceable right existent under emergency regulations.

This is true even in respect of the simple fact of issuing a receipt of the fact of arrest to the family members through the prescribed form, in default of which penalties are imposed by Regulation 20 (9 and 10) of the 2005 Emergency Regulations. This requirement is, of course, altogether different from informing the person arrested of the reasons for arrest at the time of arrest and which in any event, is not applicable to persons preventively detained. But even here, has there been even a single instance of culpable officers being punished? Or are we to assume (unbelievably) that perfection had been observed in the conduct of arresting officers in this regard?

Citation of available legal remedies no defence

Then again, it is no answer to say that anyone who is aggrieved may go to the Supreme Court and that case law unequivocally prescribes that reasons must be given for arrest, even under emergency. We are all aware of the relevant decisions setting out admirable jurisprudential reasoning that may rank as equal in any comparative jurisdiction. The point however is the practical applicability of these principles. Not every person can afford to go to the Court, not every lawyer can afford to stand up to verbal threats, attempted character assassination, the possibility of being cited as a traitor in a government website or grenades being flung at his or her house in order to give good legal representation. And it is certainly not every judge who is bold enough to stand up to the authorities and say ‘enough is enough’.

So the defence that the Court has held particular safeguards to be necessary for an arrest and detention to be legitimate is not good enough. We need to see the normal law restored which makes essential safeguard to the deprivation of liberty an actual part of the process rather than the continuation of emergency law in a context where the imperatives for the same are no longer valid. We also need to see the police actually obeying clearly enforced Rule of Law standards and their behaviour needs to be monitored independently. The Government’s recent contemptuous dismissal of the constitutional commissions as not being independent even if appointed in line with the 17th Amendment to the Constitution is not only circuitous reasoning but is most clearly shameful.

Presidential Commissions of Inquiry need also to be abandoned as an alternative to improved criminal justice processes. The fate that befell the 2006 Udalagama Commission of Inquiry should be the last and most telling example as to why these bodies aggravate the problem rather then resolve it. The report of this Commission should be released rather than ‘doctored’ extracts being published in selected newspapers and government websites.

Discarding of international standards by ‘independent commissions’

Meanwhile, there is copious citation of case law by the Government to justify its claim that protections laid down in international law are being adhered to in the domestic context. But yet it is no secret that agencies doing the bidding of the government have long since discarded this pretence.

For example, the so called National Human Rights Commission of Sri Lanka was bold, if not brazen enough to declare (in an order dated 31/01/2008) that suspects in Sri Lanka do not have the right of confidential legal representation and that international standards need not be followed in this respect.

So whence the Government’s protestations that these international standards are adhered to in our law and practice if this is what its own Commission, (the members of which have been unconstitutionally appointed, by the way), has to say? This is one of the many questions that put the Government, proverbially if not un-enviably, between the devil and the deep blue sea. We hope to have at least some of these questions answered far more convincingly than in the GOSL response to the EC report, in the near future.

-Sri Lanka Guardian