by Kishali Pinto Jayawardene
Rejection by the law and by the community
I am immediately struck by the similarities between what I see reflected in the eyes of this woman and the same hopelessness that was depicted in the face of a mother, this time from the deep South who even decades later, was attempting last year to get details of what had happened to the habeas corpus application that she had filed in the Court of Appeal in respect of her disappeared son in the late nineteen eighties.
Twenty two years later, this woman was keeping her son’s place at the table and making desperate visits to officials and the courts to find out what had happened to her application. Such was the state of her mind that she still believed her son was alive. These were the mothers and wives mainly who exist in their own twilight of despair in the country, brushed aside by the law as well as by their own communities.
The woman in Trincomalee is one of the few in this district who had the courage to go to the High Court on a habeas corpus application a month after the disappearance of her husband and his cousin. She pleads that he was not a terrorist, that he was a family man and had a son who was one year old at the time of the disappearance. My colleagues handling her application as well as those of a few other similarly affected persons shake their heads lugubriously when asked as to whether any use would be afforded by the court action. The factors weighing against the ability of the family members of the victims to obtain relief are many.
What is the point in these remedies?
In the first instance, there is the general question about the absence of the Rule of Law. Legal remedies can work, after all, only when there is a basic system of Rule of Law that is prevalent. When this is absent, recourse to courts becomes only a grim abstraction, a mockery of the very purpose and meaning of a legal system. In the East, in another context, former paramilitary leaders now at the top rungs of provincial government, engage in arbitrary land grabbing that is cunningly done under the guise of forcing land owners, often poor people with no political power, to write over the deeds to them. This pre-empts any court action. Indeed, when the dispossessed landowners are informed of their right to challenge such actions in court, they unequivocally dismiss even the possibility of legal actions. The response is stark ‘we prefer to lose our lands and preserve our lives.’
These dynamics are naturally far more aggravated when it comes to questions of enforced disappearances. Strikingly, even though the district itself has had overwhelming numbers of the disappeared, particularly in areas such as Mutur, only a handful of such cases are filed in court. Where those few petitioners are concerned, they have no idea of the exact stage at which their actions are, even though some three years have lapsed since the date of filing and they have given courts the facts relating to the the disappearance. Few lawyers are taking cases of such a combustive nature to court, which has the potential to provoke the fury of the establishment and those who do so, are struggling with the futility of the process.
Rights limited to theory
At another level, there are problems in the legal remedy itself when state officers, either the police or the army simply deny arrest. Eye witnesses are reluctant to testify and those who do, later withdraw in the face of express or implied intimidation. In the absence of an effective witness protections scheme for the complainants and the witnesses, there is little point in these remedies. They exist only in statute books or as in the case of the habeas corpus remedy, between the pages of the Constitution, a dead document to all intents and purposes. As a lawyer filing these cases, expostulates, ‘now the government and the Presidency is all powerful. Surely they can merely say that these people are being kept in detention for the purpose of investigation, if, in fact, these people are still alive?
The family members have a right to know.’ The habeas corpus remedy which has been expanded in other countries in South Asia, including most notably in India and Bangladesh, remains stagnant in Sri Lanka. There were a few decisions of the Court of Appeal in the early and mid 1990s which attempted to bring this remedy more forcefully into the legal sphere, as for example in the popularly known Leeda Violet Case (1994 3 Sri L.R 377, per S N Silva J, as he then was) in which the mere denial of the fact of arrest by the authorities was summarily dismissed by the Court. The magisterial finding of evidence of arrest and detention by the relevant authorities was used by the Court to pronounce on the fact that the authorities cannot simply declare that they do not know what happened to the person thereafter or to vow (absurdly) that the person escaped from the camp and that they were not responsible.
Sad reflection on a vital liberty rights remedy
The problem however is that this decision and some later judgments thereafter were so limited in number as to have virtually no impact on the actual process. As documented research has shown, the dismissal rate of habeas corpus applications, (coming from both the North and the South broadly speaking), during 1994-2002 was 79 per cent on an examination of 844 case records. The dismissals include rejection of applications on technical grounds, petitioner’s inability to come to Colombo, and non-appearance by legal counsel.
Meanwhile, the unspoken context of the Leeda Violet Case was also that the Court was then ruling in regard to the actions of a previous political administration which had been found to have exceeded the bounds of lawful actions when dealing with anti-state actors.
The question is however, whether courts of law would be so bold as to lay down and enforce similar principles when dealing with current administrations? What can even a bold court do when skilled agents of the state ‘disappear’ persons in such a way that there is no evidence even of arrest and detention?
These are the fundamental questions that are relevant in today’s context and which cause us to reject the notion of the Rule of Law as applicable in Sri Lanka.
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