(June 05, Colombo, Sri Lanka Guardian) The Law & Society Trust announces the release of its latest publication ‘Habeas Corpus in Sri Lanka: Theory and Practice of the Great Writ in Extraordinary Times’ co-authored by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne.
This publication critically examines more than 880 orders and substantive judgments of all courts in Sri Lanka concerning habeas corpus applications filed in regard to thousands of enforced disappearances and arbitrary detentions during the past eight decades, including those cases lodged subsequent to the ending of the conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the Government of Sri Lanka in May 2009.
It analyses specific lacunae in the law, judicial responses thereto and the functioning of the legal process in reference to domestic, regional and international standards. Advocacy at the regional level with judicial officers, members of Provincial Bar Associations, community workers and litigants form part of the findings.
Its recommendations include the need for the Supreme Court of Sri Lanka to prescribe Rules in terms of its constitutional mandate in order to better ensure the securing of this most fundamental liberty right.
The Study reveals some disquieting aspects of the functioning of the habeas corpus remedy at the provincial level. This is illustrated in the examination of 37 briefs and preliminary inquiry orders of the Provincial High Court of the Northern Province from the year 2002 onwards as well as through a number of consultations conducted with attorneys-at-law of the Provincial Bar Associations of Badulla, Matara, Galle, Kandy, Trincomalee, Ampara, Batticaloa, Jaffna and Vavuniya during 2010 and early 2011 for the purpose of uncovering some of the critical contemporary issues faced at the provincial level.
The primary analysis concerns the functioning of the Provincial High Court of the Northern Province in respect of enforced disappearances in the mid-nineties. During the period between February 1996 and December 1996, some 900 persons were arrested by the army and thereafter ‘disappeared’. Thirty-seven habeas corpus applications were filed in respect of these persons in the Provincial High Court of the Northern and Eastern Province in Jaffna. In 22 of the applications, the arrest was carried out on 19 July 1996 in an operation conducted by the army together with the local police. In all cases, the inquiry at the Magistrate’s Court was concluded with the finding that army personnel were responsible for the arrest of the person concerned. The subsequent whereabouts of that person were, however, not evident.
Common amongst the barriers to the efficacious disposal of these cases was the trend of applications being made by the respondents to transfer the matters to the appeal court situated in Colombo or the High Court of Anuradhapura. The primary reason for such applications was that the respondents found it difficult or hazardous to attend court sittings in the North and East. The extreme perils faced by the petitioners during that period in travelling to other provinces for court hearings appear, however, not to have been taken into consideration.
The Study reveals that inordinate delays in the determining of habeas corpus applications often took place due to systemic lapses and attempts by petitioners to exhaust other remedies. In 22 of the cases reviewed, the inquiry in the Magistrate’s Court was concluded eleven years after the date of arrest. In most of these cases, the Magistrate found that army personnel were responsible for the arrest of the person concerned. This predicament was further exacerbated by the fact that in many cases, the person concerned was the breadwinner of the family. Thus the family is often left destitute as a result of the disappearance. Counsel appearing for the respondents routinely requested postponements and transfers so that the evidence of the respondents could be led. In all the cases examined, the Magistrate rejected the request for postponement, mainly in view of the indigent circumstances faced by the petitioner resulting from the disappearance of the person concerned.
Yet a further barrier arose due to army authorities summarily denying the arrests. One of the common defences raised was that even though the entire operation (during which the person concerned was arrested) had been carried out by the Military Intelligence Corps and the local police, all persons arrested had been handed over to the relevant police station on the same day and that none were detained by the army. This denial of the arrest in toto, and the consistency in which this position is taken in almost all the cases analysed, demonstrates the degree of impunity with which the respondents usually acted.
There were also delays due to prevailing political conditions, which significantly frustrated the writ remedy. Moreover, in some instances, non-appearance of the counsel and respondents were formally attributed to security concerns. Such applications were usually rejected by the Magistrate, which suggests that the security concerns raised by the defence were not serious enough to validate a postponement. This leads us to the question as to whether such requests were a ploy to consistently undermine the purpose and objective of the inquiry.
The continuation of many of these problems in current times emerged from the provincial consultations held in 2010 and early 2011 for the purposes of this Study. One issue concerned the lodging of habeas corpus applications where detention orders in respect of the person concerned were non-existent or had lapsed. In such circumstances, the Court is obliged to make order that the person be released immediately. However, the usual practice of the Court appears to have been to grant another date to produce a validated detention order which, in some cases, extended well over several months upon the application of state counsel. This practice is contrary to established Commonwealth jurisprudence and requires urgent attention, perhaps through the formulation of clear procedures either in a Habeas Corpus Act or in the form of a Rule framed under Article 136 of the Constitution.
Another issue that arose from the consultations related to the need for a Special Division of the High Court to deal with surrendees on an expedited basis. Thousands of surrendees had been placed under arrest by the Sri Lankan government following the conclusion of military operations against the Liberation Tigers of Tamil Eelam (LTTE) in May 2009 leading to the filing of considerable numbers of habeas corpus applications. Yet approximately 80 judges serve in the High Courts in all parts of the country, which raises a critical issue in terms of capacity where High Courts in the North and East are particularly concerned. Thus, an interesting suggestion that emerged from the provincial consultations was that a Special Division of the High Court be created to expeditiously determine the cases of these surrendees. Surrendees are still entitled to be treated as equal citizens in terms of the Rule of Law and should be afforded the same constitutional rights and safeguards afforded to ordinary citizens.
The discussions also revealed that there were instances where the Vavuniya High Court had ordered that pending habeas corpus applications would be heard and determined by the High Court itself without any need for referral to the Magistrate’s Court. Though some voiced opposition to this practice, it appears that the practice is permissible under the proviso to Article 141 of the Constitution, which remains an enabling and not a mandatory provision.
Disturbingly, it became clear that a spate of applications filed in Jaffna, Vavuniya and Mullaitivu had been routinely transferred to the Anuradhapura High Court at various stages of the proceedings. Such transfers had been made on the application of the Attorney General with scant regard for the petitioner’s interests and therefore offended the notion of the Rule of Law. Such anomalous practices also require urgent attention.
A further problematic practice was the tendency for state counsel to move the Magistrate not to release to the petitioner the report formulated in terms of the proviso to Article 141. During consultations held in Mutur, Trincomalee and Jaffna, it was revealed that, as a result of this practice, many petitioners were totally unaware of the status of their cases after giving evidence in the Magistrate’s Court. Due to significant delays in the High Court, many years often lapsed before the matter was referred back to the High Court and ultimately taken up. Until such time, the petitioner was left unaware as to the fate of the application that had been filed.
As highlighted during the provincial consultations, the efficacy of legal remedies for victims appears to be in serious doubt due to a variety of reasons including the lack of political will in pursuing investigations and prosecutions. This predicament is aggravated by a chronically dysfunctional legal system with serious problems of laws’ delays, lack of witness protection and a manifest lack of sensitivity towards victims.
Specific Legal Reforms
This Study responds to these recurrent issues by recommending specific legal provisions to be made through a Habeas Corpus Act enabling a more efficacious functioning of the remedy. Such enactment must recognise the principle that exemplary costs would be granted where the person concerned has disappeared subsequent to arrest and detention by state authorities. Also, it must be clearly stipulated that the respondent’s estate would stand charged with the exemplary costs awarded as a debt. Under the Act, warrants of committal must be made available to the court to enable the court to ascertain whether such order or warrant is ex facie defective.
Moreover, practical difficulties in overcoming time bars in circumstances where judges may be unsympathetic to the plight faced by those moving the court for relief needs to be countered. It is suggested therefore that there should also be a clear enunciation of the legal principle that despite the habeas corpus jurisdiction of the Court of Appeal being couched in language that is discretionary, the fact of delay in instituting proceedings should not be held as a bar to the grant of relief in cases where grave human rights violations are in issue.
The Act should recognise the principle of ‘Institutional and/or Command Responsibility’, whereby an Officer in Charge of the relevant police station, or a commanding officer of the specific division of the armed forces, may be made responsible for the arrests, detentions and subsequent disappearances of persons, which are carried out within the jurisdictions of those institutions. The Act must also insist that material be placed before a court to substantiate the position that the person concerned had been indicted or released before an application for writ is dismissed. Furthermore, clarifying provisions must be introduced to squarely place the burden of proof on the authorities that are responsible for suppressing the individual’s liberty, i.e. the burden of justifying the arrest and detention.
Apart from the enactment of a Habeas Corpus Act, it is recommended that greater judicial sensitivity be shown in terms of withdrawal without reasons, given the attendant dangers that such withdrawals may in reality be for extraneous reasons including intimidation or coercion by interested parties. Hence reform efforts should reflect legislative advances as well as judicial sensitising in order to strengthen the habeas corpus remedy and establish it as one of the pillars of a functional democracy based on liberty and the Rule of Law.
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