The proverbial tip of a very unpleasant iceberg

| by Kishali Pinto Jayawardene

(October 16, Colombo, Sri Lanka Guardian) Contrary to popular perception, the crisis of the Rule of Law that has gripped Sri Lanka is not limited in its reach to only a few unfortunates. Rather, it has caught up in its wake, politicians of the ruling party as well as (inevitably) opposition members, ordinary citizens, members of the judiciary and even members of the police and the services.

A truly macabre incident

The Mulleriyawa incidents are just the proverbial tip of a very unpleasant iceberg indeed. Some weeks back, we were informed of a truly macabre incident relating to a woman who had gone for beauty treatment at one of the mushrooming beauty parlours in the country where the treatment had gone wrong resulting in an allergic reaction which had resulted in her death. The normal reaction in such an event would be the immediate informing of the police, a coroner's inquiry and necessary judicial proceedings. Instead, what did we see? The body of this woman was callously dumped by the wayside and it was only after pressure mounted over the death that the police proceeded with the inquiries and discovered the real cause for her death.

Instead of rhetoric and Action Plans on Human Rights that are limited to paper, government agencies need to prove substantially that the Rule of Law is being implemented and that the law and the Constitution is being respected.

Each and every person in the country undergoing his or her ordinary functions during the course of the day will come face to face with similar dilemmas regardless of whether the cause may be a mundane traffic incident, a boundary dispute between neighbours or a simple incident of road rage. In every one of these probable scenarios, the probability that the outcome will be ruled not by the applicable law but by endemic lawlessness is very high in the current environment.

Recently again we were informed of an incident where a judicial officer in the South was pulled out of his car and abused by a police officer. Ultimately the courageous action of provincial lawyers resulted in temporary action being taken but certainly, the overall environment of impunity remained unchanged. The lesson was made clear to other judicial officers and few would risk such violent consequences in the face of serious uncertainty over whether the outcome would be governed by political factors or not.

Remarkably clear crisis of the Rule of Law

Ironically, police officers and service personnel themselves have been the victims of this culture of violence. We find, tucked away in some obscure news page, a reported incident of the death of a soldier in barracks, for instance and never question the reality behind these reports. It is far easier to blame such incidents on post traumatic stress disorder and let them go unremarked. But these incidents have an importance all of their own and the culture that permits this to happen without incident or inquiry deserves to be exposed and highlighted. Where punishment takes place, it is politically predetermined as was the case of what happened to the country's former Army Commander, punished in the final analysis for having been so presumptuous as to challenge the incumbent ruling family.

The crisis points at which law and order breaks down are remarkably clear in these cases. We need only to look at a few cases in detail to understand the forces that compel what has become an unprecedented breakdown of the Rule of Law. Foremost to this crisis is the politicization of the three primary functions of the investigation, the prosecution and the adjudication involving in turn, the police, the Attorney General's Department and the judiciary. For example, in all cases of torture that have been exhaustively documented in Sri Lanka war time and peace time inclusive, a disquietingly common and repetitive pattern emerges. In all these cases, these common features could be summarized as follows.

First, the victim tries to obtain legal redress domestically both in the criminal court and in the Supreme Court but these efforts are to no avail. In most cases, despite the severity of the injuries and the necessity for hospitalisation, no criminal investigation is initiated and unsurprisingly so, as the law enforcement officers allegedly responsible or sought to be investigated by their own kind. While delays in the legal process stretches to years, even in the rare instances where the Supreme Court intervenes and hands down a favourable judgment, this has not impacted on the responsible officers who are shielded by the police command or by the political command.

System shielding the guilty

The point at which the law will actually have an impact is at the criminal justice level and in these contexts, if a prosecution under Sri Lanka's 1994 Anti-Torture Act successfully takes place. However, during the entire seventeen years since the enactment of this law, only a meagre three convictions have been handed down by the High Courts. As a common rule, the alleged perpetrators were neither suspended from their duties nor taken into custody, enabling them to place pressure on and threaten the victims. Many victims were requested to testify alone at the relevant police station and were repeatedly harassed to withdraw his complaint. Ultimately he or she was compelled to go into hiding. In some prominent cases, torture victims have been shot at point blank rage just days before they were due to give evidence in the relevant torture prosecutions and there has been little accountability for these killings. The Gerald Perera case is a classic instance where the accused police officers were acquitted due to his having been shot dead days before he was due to give evidence against them.

While the focus in many of these cases is on junior officers who commit abuses, there have been singular instances of torture taking place under the command or supervision of a senior officer. Yet indictments are not filed against Officers in Charge (OICs) by the Attorney General and in one instance, (the Gerald Perera case again), the OIC of the police station, at which the victim was tortured, was first indicted and then his name withdrawn from the indictment. This prosecutorial dilly dallying drew severe criticism by the High Court, which acquitted the remaining accused police officers in the indictment.

UN reporting with little positive outcomes

Early next month, another United Nations reporting mechanism, namely the Committee Against Torture (CAT) comprising of independent experts from around the world, is due to consider Sri Lanka's combined third and fourth State Party Report filed by the Government in terms of Sri Lanka's obligations under the Convention Against Torture. Previous instances (the last was in 2005) had seen the Committee reacting severely in respect of the default in adhering to Convention obligations. Particularly, it was recommended that an effective witness protection programme be put in place. But little has improved since then. Indeed, the situation has got worse. Judging from the List of Issues detailed by the CAT Committee on which the Sri Lankan State is required to respond, the nature of questioning is rigorous and detailed.

Instead of rhetoric and Action Plans on Human Rights that are limited to paper, government agencies need to prove substantially that the Rule of Law is being implemented and that the law and the Constitution is being respected. This, in turn, will be the best weapon by which LTTE diaspora motivated forces against Sri Lanka can be negated. Unfortunately, it appears destined that we will not see such a positive approach in the month ahead.