Statistics and rhetoric on combating human rights violations

By Kishali Pinto Jayawardena

There is no point in government representatives taking violent umbrage at criticism of Sri Lanka's domestic institutions in regard to prosecution of grave human rights violations, during discussions in the conference halls of the United Nations. Exhortations that these institutions ought to be allowed to work without critical scrutiny rings hollow in the face of bare statistics that offer the best and irrefutable evidence establishing the actual and undeniable fact of their extreme dysfunction.

Let us first consider some relevant statistics with the prefatory acknowledgement that Sri Lanka is fighting a 'dirty war' against a terrorist enemy that is ruthless, barbaric and undeterred by rights of civilians, whether Tamil, Sinhala or Muslim. It cannot therefore be realistically expected that government troops will themselves, engage in impeccable methods of warfare. However, when patterns of deliberate civilian killings occur unpunished over decades, then it is reasonable to suspect the bona fides of successive governments in power in regard to their commitment to stemming the tide of human rights violations.

This same rationale is applied in relation to the war against terror fought by the British and American troops in Iraq and Afghanistan. In these cases, though we have had atrocious practices of rendition and torture camps such as Abu Ghraib, the legal systems in those countries cannot be disparaged as being completely unresponsive. In fact, the courts have in many instances, laid down limits in regard to the manner in which individual liberties could be overridden.

In Sri Lanka, such violations have occurred not only in the context of the conflict in the North/East but also in regard to the thousands of enforced disappearances that took place of Sinhalese civilians at the hands of law enforcers of the same ethnic identity during the eighties. As this column has repeatedly emphasized, the question of justice remains common to these victims as well as to the Tamil/Muslim victims of the conflict. Indeed, the question of justice should be central to our discussions. Its abandonment has remained the central reason as to why Sri Lanka has been cast into its present pitiable plight.

First, let us look at the current position of prosecutions for enforced disappearances in the eighties in respect of which four Commissions of Inquiry were appointed during that tine by the Chandrika Kumaratunga administration. More than ten years later after the submission of the Reports of these Commissions which found the security forces and the police accountable for more than 90% of the disappearances, we have had only twelve successful prosecutions of the perpetrators and these also, only of junior officers who in many cases, acted at the bequest of senior officers.

These are facts ascertainable from the official records of government departments themselves, including the Attorney General's Department. On the other hand, there have been one hundred and twenty three acquittals. Examination of many of these judgments relating to acquittals disclose a manifest judicial reluctance to convict, with acquittals often resting on cursory contradictions in the evidence of witnesses who are disbelieved on contested points of recollection in regard to incidents that occurred a decade or so back.

Meanwhile, hundreds of these cases are still pending in the relevant High Courts, plagued by the sluggish legal process and by the traumatisation of witnesses who, despite extreme poverty and having to face open threats from the perpetrators still serving in even more senior positions, are compelled to attend court and face hostile examination by skilled lawyers appearing for the accused. Not surprisingly, many of these witnesses opt to drop out of the legal process, deeming it a further mockery of their grief.

Astoundingly, the phenomenon of laws delays has been used by itself to buttress the argument that the accused are not guilty. In January 2001 for example, a circular was issued by the police establishment, reinstating officers who had been interdicted in the 'disappearances' cases and charged in courts but subsequently bailed out. The reinstatement was on the basis that these cases had been long pending in courts. Fortunately, the circular was recently quashed by the Court of Appeal as being ultra vires the Establishments Code.

However, the vast majority of army and police officers credibly implicated in cases of enforced disappearances continue to serve in the military/police establishment. To give Kumaratunga her due, it must be recalled that she did recommend that more than one hundred and fifty perpetrators named by the 1994/1998 four Disappearances Commissions should be sent on compulsory leave. This recommendation was disregarded by the Army Commander at that time.

And what of the so called 'conflict cases? The situation of these cases (more than ten major cases in number to date) is even worse. In almost all of them, the accused have been bailed out (some immediately after indictment) and are serving in their old or even more senior positions. For example, in the Thambalagamam case, several police and home guards allegedly killed eight Tamil civilians on 1 February 1998. This was believed to be a reprisal killing for the LTTE bombing of the Temple of the Tooth a week earlier. The perpetrator police officers had been in the habit of abducting and killing people and then reporting that they had killed LTTE cadres in order to get promotions. Even though fifteen suspects were arrested, they were released on bail some months later. The case remains at the preliminary stage as yet.

It must be repeatedly emphasized that the findings of previous Commissions of Inquiry have had absolutely no relevance to these prosecutions as any serious study would immediately reveal. Examination of the relevant briefs and judgments of the High Courts show that the findings of the Commissions have not even been cited in these cases with only one or two judgments being an exception to the rule, where an exceptionally diligent trial judge has taken pains to bring in the Commission of Inquiry process, going outside the strict confines of the law for that purpose.

The extreme gap between the fact finding Commissions of Inquiry and the actual prosecutorial process cannot be stressed more definitively. It is therefore surprising that former members of these Commissions of Inquiry have deigned to serve yet again on another such Commission of Inquiry, thereby condoning if not encouraging the perpetuation of such futile exercises without agitating to bring about concrete changes to Sri Lanka's criminal law and procedure in order to enable actual deterrent prosecutions in these cases.

Even if the current Presidential Commission of Inquiry (touted at international fora as a unique experiment of its kind, though thankfully such references are now rare given the harsh criticism of its functioning by the 'eminent observers') confounds its critics and works proactively in the future, its findings (in the context of the current status of the law), will have little relevance insofar as the prosecutions in respect of grave human rights violations are concerned.

Lackadaisical prosecutions are also seen in cases filed under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994. Indictments have been pending for almost two years in the relevant High Court without being served on the accused. Lawyers watching the interest of the victims complain of a lack of prosecutorial will as well as lack of judicial will in bringing about convictions. It is therefore amusing that government representatives attending the sixth session of the United Nations Human Rights Council in Geneva last week should assert that the High Courts have indicted over 90 members of the Sri Lankan security forces under the Anti-Torture Act. Yet here again however, only three convictions have been evidenced so far, after thirteen years of the law being enacted. Where then, is its actual deterrent impact?

Whether criticism of our institutions of justice emanates from domestic rights activists, from international monitors of the United Nations or from internal supervisory bodies such as the International Independent Group of Eminent Persons (IIGEP), it makes very little difference. From whatever source it comes, the best way to mute such criticisms is to demonstrate that the country's accountability mechanisms are working independently and well. Unfortunately, this is not the case. Indignantly outraged rhetoric cannot detract from this stark truth.