ISSN: 1391 - 0531
Sunday, March 11 , 2007
Vol. 41 - No 41
Columns - Focus on Rights

Where is the law in Sri Lanka today?

By Kishali Pinto Jayawardena

What is perhaps most disturbing in regard to the currently rampant killings, abductions and disappearances is the disinclination of many, (excepting in rare instances) to invoke the authority of the law in order to compel accountability, at least in instances where state complicity is strongly suspected.

At one level, the apparent impunity in which persons are reported to being kept under emergency and detained for long periods of time without charges being brought before them, is extremely problematic. Why has the law been reduced to almost a cipher in this process? What is the reason for this? Is it that Sri Lankans no longer have any faith in the legal system and the ability of the law to safeguard their rights? Is it that the courts are considered as unfriendly forums wherein to seek justice? These questions are perplexing and go to the very root of whether this country can consider itself to be still governed by the rule of law.

In contrast, the late eighties during which Sri Lanka witnessed arbitrary detentions and involuntary disappearances to the extent of making it the second highest country in the world with the recorded number of disappearances, recourse to the law was far more spirited. In this period, we saw the judges overcoming their initial reluctance to intervene into arbitrary actions of the police and defence authorities in detaining people and proceeding to articulate very stern principles as to when the liberty of the subject may be restrained. And make no mistake about this, these principles form very much a part of our law still and need to be conformed to at any point that the jurisdiction of the courts are invoked.

It is therefore trite law that the power to arrest and detain under emergency must be exercised reasonably. Explicit in this affirmation is the understanding that though the government may be obliged to take extraordinary measures to safeguard national security in times of grave national crisis, these measures cannot be more stringent than necessary. As then Chief Justice S.Sharvananda expressed it in his momentous judgement in Joseph Perera v the Attorney General, where for the first time an emergency regulation was held to be unconstitutional, "Over breadth in this area has a peculiar evil, the evil of creating a chilling effect, which deters the exercise of that freedom." (1992 1 Sri LR 199, 230)

The Court, at that time, professed itself to be vigilant of its role as guardian of the rights of the people specially during times of emergency, to ensure that inroads into the liberty of the subject must be strictly construed. Even in regard to arrests and detentions under emergency, the Defence Secretary was required to do more than merely plead national security as reason for arrest. He had to place before the Court specific material to show that his decision to arrest and detain had been taken on reasonable grounds. Where an arrest was clearly unreasonable, the Court released the victim on the basis that there was lack of sufficient material for the detention or that the Defence Secretary had misdirected himself in law. The principle was that the discretion given to the Defence Secretary is not unfettered. It must be exercised reasonably, in good faith and on proper grounds. Assuredly, it cannot be exercised mechanically or in order purely to gather evidence against a particular person who is only vaguely suspected of misdeeds.

As importantly, reasons must be given for any arrest, even in regard to those preventively detained under emergency. These must be given, if not at the time of arrest, then at the first reasonable opportunity. The many cases in which these principles have been articulated forms part of the jurisprudence of this country. Why are these principles not being affirmed in not one or two current cases but in each and every detention that is tinged even lightly with arbitrariness so as to bring about a change in overall practice by defence authorities?

At another and far more shadowy level, the apparent tolerance exhibited by government authorities towards the spate of killings, abductions and disappearances taking place in this country exposes a different problem. The explanation given this week by the government dismissing these charges as fabricated would be richly farcical if it did not concern the lives of countless human beings.

On the contrary, (and notwithstanding the shrill if not hysterical denunciations by some government ministers), the current Inspector General of Police (IGP) must be given his due for stating that some police and security forces are allegedly involved. Reports to the effect that the IGP himself had been compelled to go into hiding after the furore that his remarks had caused within the government were only half mischievous in their intent.

Regardless, the mere statement of the IGP that deterrent action will be taken against those responsible, will not do. We have listened to these statements by senior government officers time and time again. What should really be put in issue is the half-hearted manner in which investigations are undertaken into these incidents. One good example of such lackadaisical investigations is in regard to the executions at point blank range of the seventeen aid workers of Action Contra L' Faim, (ACF) an international non-governmental organisation, in Mutur in August 2006.

The call made by the International Commission of Jurists' observer into the ACF case, Michael Birnbaum this week for an effective and independent investigative body that is functionally separate from the police to conduct investigations into these incidents re-iterates an old call made by human rights groups working within Sri Lanka. Equally so is the need to have an independent office of a Special Prosecutor who will be vested with effective powers to handle prosecutorial responsibility in all such cases.

The cumulative impact of a flawed investigative and prosecutorial process coupled with the lack of political will has made the non-identification of the perpetrators of these current killings and abductions almost a certainty. This is a clear failure of justice and the judicial system in Sri Lanka. Do we want this to continue until we have no option but to agree to substantial international intervention in order to ensure that the lives of Sri Lankan subjects are protected? This is the moot question.

US recognizes Sri Lanka's Woman of Courage

Ambassador Blake presenting the certificate to Ms Pinto Jayawardena

Lawyer, activist and author Kishali Pinto-Jayawardena has been recognized by US Ambassador Robert Blake for the Secretary of State's 2007 International Women of Courage Award. A columnist and legal consultant to The Sunday Times, Ms. Pinto-Jayawardena, "has been an unstinting advocate for the rule of law, as her legal work and writings on safeguarding the independence of the Sri Lankan judiciary and key constitutional bodies such as the National Human Rights Commission and National Police Commission demonstrates", an embassy press release stated.

Ms. Pinto-Jayawardena, the embassy's nominee for the award, has publicly called on the government to uphold the requirement to have the Constitutional Council appoint members of national commissions. She has been involved in cases concerning the right to freedom of movement, freedom from arbitrary arrest, freedom of speech and equality of persons. In addition to her involvement in public interest litigation in Sri Lanka and taking cases before the United Nations Human Rights Committee, she has written extensively in newspapers, journals, and books about human rights, media freedom and the role of women.

"Ms. Pinto-Jayawardena has served as a trailblazer for women in the field of law and the media, leaving an indelible mark in the area of legal advocacy" Ambassador Blake said. "She has raised the profile of human rights protection not only in Sri Lanka, but also in international law," he added. Despite covert and overt attempts to intimidate and discourage, she perseveres in her unflagging efforts on the front lines of human rights protection, the press release stated.

In an additional message issued to mark the occasion, Paula J. Dobriansky, US Under Secretary, Democracy and Global Affairs congratulated Ms Pinto-Jayawardena on her selection as part of an important group of international women of courage. Responding to the selection, Ms. Pinto-Jayawardena who is also deputy director and head, Civil and Political Rights Unit, Law and Society Trust, pointed out that the strength of a country lies in the ability of ordinary people to protest against injustice in any form, even by one or two voices speaking out and making a difference.

"I have always passionately believed this and have tried to use the fields of law and media in which I work, for that purpose. This selection is personally significant to me in that respect," she said. She added that while the deterioration of the political culture is no doubt harmful, political corruption of constitutional institutions results in irreparable damage to the rule of law.

"We have a situation today when it is unbearably difficult to protect even the most basic rights of Sinhalese, Tamils and Muslims but there is little public acknowledgement of this. Constitutional provisions such as the 17th Amendment continue to be blatantly ignored with little or only token protest though on the other hand, we hear of ongoing consultations ostensibly to improve the existing rights chapter in the Constitution. This amounts to nothing but a mockery. As Sri Lankans, we have lost faith in the constitutional process. Until we restore this faith through committed advocacy, we cannot think of genuinely solving the problems of the North or the South," she said.

US Secretary of State Condoleeza Rice established the annual Award for International Women of Courage in honour of International Women's Day 2007, by recognizing women around the globe who have shown exceptional courage and leadership in their work. This is the only Department of State award that pays tribute to emerging women leaders worldwide, and offers a unique opportunity for transformational diplomacy in the field of international women's issues

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