The question of equal justice

By Kishali Pinto Jayawardena

I am irrepressibly amused when proponents of government policy in Colombo compare themselves with their counterparts in Kilinochchi for the express purpose of patting themselves on the back. In fact, there could be no greater insult offered than such comparisons, if only those inane enough to indulge in these self defeatist exercises realize as such. What pray, do the legitimate institutions of the Sri Lankan State have in common with those maintained by a megalomaniacal fanatic who has decimated as many members of his own Tamil community, as he has the Sinhalese and the Muslims? If this is the baseline at which comparisons are made, then there cannot be much effort in striving for better. Veritably however, the level of accountability at which the Sri Lankan State and its institutions is measured, is at a different level altogether; therefore, let us have no more of these facile comparisons or false congratulations.

The Dingiri Banda case

The accountability of the State is a question that is relevant across the ethnic, religious and societal divide, the addressing of which requires stern conviction. Apologists who are fixated by their need to protect the government at all costs even from reasonable and justified scrutiny, self serving buccaneers who act only with the objective of accumulating power and privilege as well as cynics who resort to justifying wrongs by omission if not by commission, have no place in this order of things. This is particularly so regarding the question of legal accountability for human rights violations. And the deficiencies in the process are demonstrated time and time again.

One good example is afforded by the United Nations Human Rights Committee's most recent Communication of Views against the Sri Lankan State delivered on 26th October 2007. This particular Communication does not, ironically, (as is often the case) involve the plea of an ordinary citizen. Instead, it is a response to a petition filed by none other than an officer in the Gajaba regiment of the Sri Lanka Army against two superior officers of his own regiment. At all stages, this case exposes the deficiencies in the internal accountability structures of this country.

Let us examine the exact plight that befell R..K.G. Dingiri Banda of an obscure village named Orundisiyambalawa, Bakamuna who had joined the army as a soldier recruit in 1982 and was successively promoted to the position of Lieutenant in the Gajaba regiment of the Sri Lanka Army. In late 2000, while he was sleeping at his quarters in the Officers Mess at the Saliyapura Camp, two identified army officers of a superior rank, inflicted acts of torture and cruel inhuman and degrading treatment upon him as part of a so called ragging ceremony. Thereafter, Dingiri Banda had to undergo months of hospitalisation and was retired from the Army service on medical grounds. Though an internal inquiry was held, he was not permitted to present evidence at this inquiry. The Court, comprising officers from the Gajaba Regiment, decided that the two perpetrators had acted offensively and scandalously, thereby causing disrepute to the Army. Yet, the perpetrators were not court martialled but merely suspended and that too temporarily. To add the proverbial insult to injury, they were later promoted and are serving currently as captains in the Sri Lanka Army.

Dingiri Banda's fundamental rights petition to the Supreme Court (which he filed after affording himself of legal aid through the Bar Association) was, as he alleged, settled, against his wishes. The case that was filed in the Magistrate's Court is still pending at the non-summary stage after more than five years, apparently due to the delay to forward the relevant medical report to court. A civil matter that he had filed is also pending.

Filing an Individual Communication to the UNHRC

It was at this stage that he filed an individual communication to the Human Rights Committee in terms of the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The Committee, after considering the matter, rejected the State party's argument that the two perpetrators had already been tried and punished by a Military Court of Inquiry and could not be tried again.

It pointed out that this Court of Inquiry had no jurisdiction to try anyone for acts of torture, that the author was not represented and that the punishment given to the two perpetrators was only forfeiture of seniority, despite the fact that Dingiri Banda had to be hospitalised for several months as medically attested. It was also noted that none of the legal proceedings had resulted in effective relief being given to him. Consequently, this violated the duty imposed upon the State in terms of the ICCPR to thoroughly investigate alleged violations of human rights, and to prosecute and punish those held responsible. The settled rule of general international law that all branches of government, including the judicial branch, may be in a position to engage the responsibility of the State party was reiterated. Accordingly, a violation of ICCPR Article 2(3) read with Article 7 was found.

The ICCPR and similar cases

Dinigiri Banda's case is only that of many others where justice has been circumvented by delay, prosecutorial ineptitude and a general lack of institutional will. This is particularly so in regard to cases of extra judicial execution of Tamil civilians arising out of the conflict as well as prosecutions concerning the thousands of enforced disappearances of Sinhalese in the violence of the 80's.

Insofar as the Communication itself is concerned, it is safe to assume that it its Views would remain unimplemented like the other past Communications. At a minimum, the Government has not even published its contents despite a clear duty to do so. Further, it is interesting that the Sri Lankan State continues to make submissions before the UN Committee in individual communications despite the judgment of the Supreme Court last year in the now famed Sinharasa case which declared that the very act of Presidential accession to the ICCPR Protocol, (in terms of which individual communications are filed), was unconstitutional and consequently that the determinations of the Committee would have no internal force. The Government promised to enact a law that would redress the problem posed by the Sinharasa judgment. Instead, a mockery of a so-called 'ICCPR law' was passed recently which coyly bypassed the constitutionality of the Presidential accession and instead reproduced only a few selected ICCPR rights. So, on the one hand, the Sri Lankan State continues to be avowedly subject to the reach of the Protocol while, on the other hand, it totally disregards these Communications at the national level.

This is undoubtedly a paradox. Unfortunately as in many other instances, this too is a paradox that sits uneasily with the Government's professed commitment to respect rights. Until these paradoxes are addressed, all the complacent protestations on the part of our apologists that Sri Lanka's accountability mechanisms are working as much as can be expected in a country where there is conflict, should be dismissed with the contempt that they so richly deserve.