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There is little doubt that the findings of United Nations Special Rapportuer on Countering Terrorism, Ben Emmerson on the sorry fate of Sri Lanka’s justice system, particularly in regard to the continuance of a ‘culture of impunity’ are significantly troubling.

‘A fate worse than death’
Reporting to the Human Rights Council earlier this week, the Special Rapportuer reflected on a recent visit to Sri Lanka with angst. He expressed serious apprehensions that ‘the most senior judge responsible for terrorism cases in Colombo informed the Special Rapporteur that in over ninety per cent of the cases he had dealt with so far in 2017, he had been forced to exclude essential evidence because it had been obtained through the use or threat of force’ (at paragraph 25). It was also pointed out that the National Human Rights Commission’s (HRCSL) view was that ‘torture in custody was widespread, systemic, institutionalised and formed a major priority in its work.’

A particular focus was that Prevention of Terrorism Act (PTA) pre-trial detainees languish in prison for years without being actually tried for an offence. According to the Emmerson report (at paragraph 15), reflecting statistics provided by the Office of the Attorney General, ‘out of 81 prisoners at the time in the judicial phase of their pretrial detention, 70 had been in detention without trial for over five years and 12 had been in detention without trial for over ten years.’

As he rightly notes, such lengthy administrative detention without judicial review violates rights. The risk of torture in these cases is correspondingly higher with eighty per cent of of those arrested under the PTA in late 2016 complaining of torture and physical ill-treatment (at paragraph 25).

Alarming subversion of the judicial system
These concerns are, of course, nothing really new. Persistent continuance of the country’s ‘impunity culture’ violates Sri Lanka’s own law and the Constitution. Injustices caused to detainees in the nether-world of ‘administrative detention’ have been a persistent focus for decades. But the sheer force of the percentages disclosed in the Emmerson report testifies to the alarming subversion of an under-resourced judicial system staggering under the strain of built-in impunity.

Criticism of the abhorrent admittance of confessions by detainees to senior police officers has also been historic, which the report focuses on. The burden of proving that confessions made by them are coerced is borne by the detainees. This is an impossible burden to fulfil in many instances given the secretive and skilled manner in which torture and ill-treatment occurs in official detention centres, let alone those that were ‘unofficially’ run. Other common Rule of Law failures include the fact that examination of detainees by a Judicial Medical Officer has been neither a deterrent nor ‘an effective way to substantiate allegations of torture and ill-treatment.’ Access to lawyers for individuals in detention under the PTA is categorized as being ‘patchy and far from systematic.’

These all constitute fair warning to this Government not to proceed in a haphazard manner with the proposed Counter-Terrorism Act (CTA), meant to replace the PTA but which has been meticulously detailed in this column as being far worse than the PTA in many of its aspects. The Government must put the CTA draft in whatever stage that it is currently in, before the public without allowing various unauthenticated versions to float around. It must undertake a thorough and independent scrutiny of its contents for rights-compliance, including sending it to the HRCSL.

Extreme swings of the pendulum
That being said, screaming headlines over-exaggerating the Emmerson findings by imputing that the very same levels of impunity that existed prior to 2015, also exist now without any discernible difference in intensity are misleading. Indeed, the dangers of swinging violently to either side of the pendulum in assessing the manner in which the Sri Lankan State protects citizens (or fails to, as the case may be) cannot be over-emphasized.

It was repeatedly warned in these column spaces within a few months of the ‘yahapalanaya’ Government assuming office that, over effusiveness in celebrating supposed gains made in the protection of civil liberties following the 2015 change was not only silly but also counter-productive. Unremitting applause by overseas missions in Colombo and high-level delegates on whistle-top tours to the country, the respective offices of the United Nations and the European Union along with wildly cheering civil society had majorly negative repercussions.

First, it allowed a new Government feeling its cautious way after the electoral defeat of the Rajapaksas to relax, complacent that it need not do overmuch except to engage in the superficialities of ‘ticking the box.’ Secondly even what was accomplished was not with the inclusive participation of Sri Lanka’s communities at village level, quite unlike the broad-based and over-arching thrust of South Africa’s post-apartheid transitional justice process led by individuals of esteem and repute, whether religious leaders, constitutional lawyers or judges as the case may be.

Systemic abuses then and now
Here, it was manifestly different. Whether constitutional reforms or transitional justice, the aim seemed more directed towards political party maneuvering with a dreadful loss to the credibility of the entire effort. We can see the consequences of this dysfunction continuing to the present day, with the Joint Opposition delightfully capitalizing on friction within the committees seemingly established to ‘advise’ on the constitutional reform process with the very credentials of those involved being challenged (and inevitably so, as it must be said). This was a sadly blinkered exercise, now winding down to a splutter and a sigh.

But despite its ugly warts, continuation of systemic abuses under the ‘yahapalanaya’ administration in relation to PTA detainees or protection of rights in general cannot be equated to the blatant and openly horrific manner in which the Rajapaksa regime violated the Rule of Law. There are important differences between the two. And if the Rajapaksas are in fact, enabled to return mostly due to the idiocies of the current administration admittedly, the frontline victims will be ordinary Tamil people in the former war theatre, with insidiously motivated and well-oiled propagandists having the means and the ability to seek refuge abroad. That is undisputed.

Further, the link between torture of PTA detainees (of Tamil ethnicity) and torture during routine law enforcement (of Sinhala detainees) documented in thousands of cases, must not be lost sight of. Torturers are certainly no respecters of ethnic lines even though the motivation and intention may differ. And justice for those who have suffered in this country must cross ethnic and racial boundaries without a doubt.
If the intention is to actually change Sri Lanka’s impunity culture from Point Pedro to Dondra Head, recognising that common truth is pivotal. In the alternative, we can continue using this as a favourite whipping boy on social media and for campaigns in front of the United Nations but to what effect?