Clownishness directed at the world at large

| by Kishali Pinto Jayawardene

( June 10, 2012, Colombo, Sri Lanka Guardian) A dangerous intent lies underneath an apparent insouciance and clownishness directed by Government representatives at the world at large. This week, two statements made by senior high level officials range from the peculiar to the plainly bizarre and expose this intent in no uncertain terms.

Theatrical and forceful claims

The first such statement was made by former Attorney General Mohan Peiris, when summoned this week by the Homagama Magistrate's Court to give evidence in regard to a claim that he made last year before the United Nations Committee against Torture (CAT Committee). His submission before the CAT Committee considering Sri Lanka's periodic report under the Convention against Torture was as Legal Advisor to the Cabinet as he had retired from the office of Attorney General by that time.

His claim, made theatrically and with considerable force to Committee members who requested information in regard to 'disappeared' web journalist and cartoonist Prageeth Ekneligoda, was that his information indicated that Ekneligoda was living overseas as a refugee and that further investigations were ongoing.

This claim was in accordance with the Government's strenuous protests that dissenters claiming to have been 'disappeared' post war were in fact, leading luxurious lives overseas.

Immediate relevance to the domestic legal process

But several factors distinguished this particular statement from the many other swashbuckling assertions that Government representatives had been wont to make in sittings of juristic bodies of the United Nations, such as the CAT Committee and the Human Rights Committee.

For one, these were 'live' sessions broadcast to the world to see and there was no ambiguity about what was said. Further and most importantly, this statement became immediately relevant given an ongoing habeas corpus application filed by Ekneligoda's wife in the Court of Appeal in which she implored the Court to ascertain the whereabouts of her husband.

Predictably therefore, following the CAT sessions, an application was made in Sri Lanka in the habeas corpus application requesting that the Legal Advisor to the Cabinet be summoned to give evidence as to his assertion regarding the whereabouts of the 'disappeared' journalist. This request was acceded to by court over the objections of the Attorney General.

Accordingly, this week, we were privileged to hear the Legal Advisor to the Cabinet submitting to the court that 'only God knew the truth or untruth of the statement' that he made last year to the CAT Committee as to the whereabouts of the disappeared journalist. We were further informed that he had relied on intelligence reports and information supplied to him by the Attorney General's Department. These extraordinary comments were laced with an equally extraordinary rider that he was merely replying to questions asked of him by foreign delegates who were not satisfied with the Government's stand and insisted on repeatedly asking questions. It was almost as if we were asked to emphasize with justifiable annoyance regarding the persistence of foreigners who should know better than to insist on asking awkward questions. And thereby hangs the tale.

This column does not intend to touch on matters that are sub judice, given that this is an ongoing case. However, the cavalier attitude taken by Government representatives before the United Nations, as exposed in this testimony of a senior legal official before court, will indeed be focused on. This has nothing to do with the substantive legal issue before court and everything to do with the frivolous and immature manner in which this Government responds to legitimate questions raised in the light of our own Constitution as well as treaty obligations that Sri Lanka has voluntarily undertaken

The (ir)relevance of the Almighty to accountability

The ludicrously irrelevant reference in this testimony as to the knowledge of the Almighty regarding the fate of a Sri Lankan towards whom the State owes a constitutional duty to protect, is part of this regrettable immaturity no doubt.

Yet, what is even more telling is the clear message of contempt that such attitudes exemplify. These statements were made in a court hearing rigorously monitored by diplomatic representatives in the context of a serious legal hearing into a controversial disappearance. Their impact would no doubt be negative and conveyed back as such.

Is it any wonder therefore that the attention of the international community is directed towards us in a way that should cause each and every one of us in possession of a conscience, to shrink in shame? Surely this is a relevant question to pose in the background of Sri Lanka being dragged into hitherto uncharted and extremely hazardous waters of state accountability in international law?

Teaching the law and the facts

The second bizarre statement made this week relates to the police spokesman SP Ajith Rohana denying that torture takes place at police stations and stating that only five cases have been 'prosecuted' in courts under the special law enacted for this purpose in 1994.

On the face of it, this statement is statistically wrong. The police spokesman, an attorney at law by profession, appears to be unaware of the clear distinction between the meaning of 'prosecution' and 'conviction' in law. The 'five cases' that he refers to, are in fact, five convictions handed down by the High Courts, meaning instances where police officers were found guilty following indictment and prosecution.

Actual prosecutions under the 1994 CAT Act, (including pending cases and acquittals as well), are far more than five cases. On government documentation itself as presented to the CAT Committee last year, fifty cases of alleged torture were pending as at 2011. Activist documentation of instances of torture in police stations with precise details of the place, the perpetrator and the victim is much higher. None of these cases have been proven to be false or fabricated.

Moreover, the assertion that a low rate of police torture may be measured by the 'five cases' that he refers to, (even if his statement is corrected as applicable to convictions), is patently untrue.

The low rate of conviction by Sri Lanka's High Courts under the CAT Act is traceable to many problems with the country's legal systems and certainly not owing to a decrease in instances of police torture. As this column has repeatedly emphasized, the absence of a witness protection law is high on this list. Coupled with laws delays, the lack of protection for witnesses means that they are threatened and even killed by the very state officers responsible for the torture.

Some years ago, the Supreme Court gave relief to a law abiding state employee Gerald Perera who had been tortured by police after he was mistaken for a criminal with the same name. Yet he was killed by his own torturers days before he was due to give evidence at the criminal trial under the CAT Act. The trial collapsed and a verdict of acquittal was entered. Pertinently, the High Court faulted the Attorney General for its withdrawal of the name of the Officer in Charge from the indictment. Lackadaisical prosecutorial policy has been another reason as to why more acquittals rather than convictions are forthcoming under the CAT Act.

Contempt for accountability

What is remarkable is the common thread of contempt for accountability which runs through these two statements, one made by the Legal Advisor to the Cabinet and the other made by the official police spokesman. They combine arrogance and obfuscation to an unbelievably reckless degree.

This swift and heedless march into disaster needs to be stopped. Reason and commonsense should dictate responses to fundamental questions of the Government's accountability in terms of the Rule of Law. It appears however as if this time will never come.