Human Rights and the executive presidency

By Kishali Pinto Jayawardena

In a presentation delivered at the Human Rights Centre, Rural Litigation and Entitlements Centre, Dehradun, Utta Pradesh in May 2000, the incumbent President Mahinda Rajapaksa, (undoubtedly in a considerably more relaxed frame of mind than now), questioned as follows; 'In a legal environment where the ordinary system of justice or even a special regime such as emergency law is deemed too tardy or too ineffective…is it justifiable to permit a certain degree of extrajudicial action to safeguard the interests of the State or the community at large? Do extraordinary exigencies born of conflict and strife permit extraordinary actions on the part of the State and its servants? The answer is, of course, emphatically in the negative. That way lies the path to anarchy and ruin."

These are undeniably excellent principles and need to be applied with full force to the administration under his control. This point will be adverted to later on in this column. But for the moment, let us note that the presentation that he made is most remarkable for its lavish citation of international human rights standards and principles, in a throw back perhaps to the eighties when Rajapaksa was among the most regular visitors to the international human rights tribunals and bodies based in Geneva. Indeed, the contribution made by international agencies and human rights watchdogs that monitor and report on violations is specifically acknowledged. It is therefore incorrigibly ironic, when similar mechanisms of pressure are resorted to by activists and lawyers in response to similarly grave patterns of human rights abuses during the current period of his government, that the full force of the government propaganda machinery would be brought to bear against those persons amidst ubiquitous admonitions of 'selling the country to the west.'

The question is therefore quite simple; were not these purported admonitions equally applicable to those activists who voiced their concern during the killing fields of the eighties and the early nineties, chief among whom is now the incumbent Executive President? If protestors now are being accused of lack of 'national feeling' (which is the much abused term used now) in taking Sri Lanka's internal problems before international human rights monitors, this accusation should undoubtedly apply first and foremost to the Executive President himself. In fact, I have no doubt that he would, be the first person to appreciate this beautifully uncomplicated logic.

But a far deeper question is pertinent now as it was then. We invite international scrutiny precisely because our domestic justice mechanisms are either non-functional or subverted. In this, I do not mean the determination of a partition matter or a pure and simple promotion issue, as important as these may be to the individual concerned. What I mean is the adjudication of complaints that directly relate to the life and liberties of individuals who have been threatened or killed at the hands of the State and its agents, precisely the sort of action that was disavowed so strongly by President Rajapaka in his presentation. The question of impunity was predominant in the eighties and early nineties when some 40,000 enforced disappearances occurred in Sri Lanka, primarily of Sinhalese youth and remains the main issue now, in respect of the enforced disappearances of (overwhelmingly) Tamil civilians.

The core of the problem in this regard remains Sri Lanka's subverted prosecutorial and legal system. Indeed, the magnitude of the problem was honestly acknowledged by former Attorney General K.C. Kamalasabeyson when delivering the 13th Kanchana Abhayapala Memorial Lecture some years back. The former Attorney General who passed away last week would undoubtedly be remembered for striving, during his term as the chief law officer of the land, to restore prestige to an office that has been subject to insidious politicisation throughout the past many decades. He was forthright in posing the question as to whether it was more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?

In previous columns, it has been pointed out that if the problem of enforced disappearances is to be effectively tackled, crucial changes are needed to Sri Lanka's criminal law and procedure, including recognition of a crime of enforced disappearances and the concept of the responsibility of superior officers, which latter concept has already been recognised by the Supreme Court in imposing vicarious liability for persons in authority or command. A further interesting development relates to the question of admittance of confessions to officers of the military police. Such confessions have been evidenced in a number of cases, (often proving to be the most valuable piece of evidence in a context where the legal system is titled in favour of the perpetrator in uniform). In the Krishanthi Kumaraswamy case which concerned the barbaric rape and murder of a schoolgirl at the Chemmani checkpoint while on her way to sit for examinations and the murder of her brother, mother and neighbour who went in search of her, the confessions made to the military police by the accused (eight soldiers and a police officer) were ruled to be admissible by the High Court trial-at-bar.

However, this ruling was overturned by a Divisional Bench of the Supreme Court on appeal (2/2002 TAB, SC Minutes 03.02.2004). The Court stated that though the prevalent evidence and criminal procedure law does not define a 'police officer' to include an officer of the military police, the term 'police officer' needs to be expansively interpreted in order to protect the rights of the accused. Accordingly confessions made to military police officers were debarred but the convictions and sentences were upheld on the basis that, in any event, the guilt of the accused was established beyond reasonable doubt. Though the ruling had thus, no practical effect in this case, it remains of extreme importance in pending cases of alleged massacres of Tamil civilians by state officers where confessions made to the military police will now be shut out.

Given the necessity to protect the presumption of innocence of every accused person, this judicial interpretation may have been justified in that context. However, the irony is that this same privilege is not afforded to alleged 'terror' suspects arrested under emergency law which allows confessions made to an ASP and any officer above that rank and imposes the burden to prove the voluntary nature of the confession on the accused. A call made by the United Nations Human Rights Committee to amend Section 16(2) of the Prevention of Terrorism Act re this unfair imposition of the burden of proof has yet not been heeded. Instead, the very invocation of the individual communications remedy to the Committee has been constitutionally outlawed.

This is just one issue pertinent to these discussions, a fuller analysis of which must belong to a different forum rather than a newspaper column. Yet, the point is clear; in 2000, President Mahinda Rajapakse stressed the fact that 'no realistic discussion of the problem of disappearances can take place without overall conception and adherence to human rights and the principles that guide democratic society in general.' We can only reiterate the substance of this excellent caution. However, a rider pointing to its direct application to his own administration is also quite irresistibly apposite.