Tempting distractions and the rule of law

By Kishali Pinto Jayawardena

Sri Lanka's criminal justice process is peculiar for its tortuous recourse to ordinary penal provisions relating to enforced disappearances in the absence of a specific 'crime' of disappearances. Our criminal law is a first offender of the international law principle that the act of enforced disappearance must be criminally defined in such a way that is clearly distinguishable from related offences such as abduction and kidnapping.

In the recent decades of mass killings, enforced disappearances and violation of physical life and liberties, only two major criminal prosecutions have been successfully brought to a close at the original and appellate process namely in the Embilipitiya Case and the Krishanthi Kumaraswamy Case. A limited number of lesser cases catching up insignificant service personnel need also to be mentioned for the record. However there is no doubt that the record of successful prosecutions in this regard, (along with the conviction rate of 4% for grave crimes), testifies to the failure of the legal system notwithstanding what government apologists may splutter in tangled justifications.

Lack of political will

Yet, the question of accountability in terms of the criminal law extends beyond the mere absence of a legal definition in a statute. Even where a statute has been relatively sophisticated in its substance such as the 1994 Anti-Torture Act, its actual impact upon society has been minimal due to poor prosecutorial processes and the lack of political will to bring about substantive changes. The recent acquittal of the police officers who perpetrated torture on an innocent workman, Gerald Perera illustrates this, as does the bare fact that only three convictions have resulted in terms of this Act since its enactment. Excuses advanced such as the weight of the criminal law favouring the accused, the absence of a comprehensive witness protection scheme resulting in witnesses dropping out of protracted trials due to intimidation by the perpetrators, unsympathetic trial processes, that the harsh imposition of a minimum sentence of seven years has made judges reluctant to convict. Yet, as this column has pointed out during the past weeks, these arguments only illustrate the essential weakness of the system and consequently, the failure of the State to remedy these lacunae and put into place a working and efficacious trial process.

Victims needs

A broader vision of the role of prosecution processes in meeting victim needs for information and reparation as well specific avenues for victim participation in trial processes is undoubtedly needed. A revised trial process in Sri Lanka should give the victims the right to initiate investigations and invoke the jurisdiction of the Court. They should have the right of access to all documents and necessary information including legal documentation at any stage of the trial. Where requested, the trauma of facing in open court, the very persons accused of causing immeasurable agony to themselves and their loved ones should be minimized.

The above reasoning goes to the argument that the failure of Sri Lanka's prosecutorial and legal processes cannot be limited to extraordinary crimes during times of emergency; rather, they manifest a pervasive problem with inadequate legal mechanisms that are in force in times of peace as well as (obviously, in a more aggravated manner) in times of war. The lack of political will of the Sri Lankan State in identifying the perpetrators responsible for involuntary disappearances in emergency times or indeed, in bringing perpetrators of torture in ordinary times to justice, is the most pervasive problem of impunity that is present today. Linked to this is the problem of arbitrary arrests on ostensible reasons of national security. Journalists have been the primary target in this regard.

Deterioration of the rule of law

The independence of public institutions and restoration of public respect for the independence of the judiciary and implementation of the rule of law in process of governance remains paramount in this regard. Proper implementation of the 17th Amendment is central to this question. Importantly, monitoring entities such as the Human Rights Commission of Sri Lanka and the National Police Commission must be restored to their proper statutory and constitutional role.

Restoring respect for the Constitution must go parallel with reforming the law and prosecutorial policies in regard to enforced disappearances and other grave human rights violations. In this context, fact-finding Commissions of Inquiry are a luxury that we can do without. In all respects, the central focus should remain on the legal and prosecutorial process however tempting it may be to amuse ourselves with distractions that promise nothing for the victims but only provide a stage on which various actors play out their little dramas for the benefit of the gallery.

Deterioration of rule of law standards including the independence of the judiciary and scant respect for constitutional governance has framed Sri Lanka's slippery rush along the Gadarene slope to a barely functional state. Poor prosecutorial and investigative capacity to address grave human rights violations have resulted in patterns of scattered individualized prosecutions that have failed to challenge an institutionalized culture of impunity.

Intermittent judicial efforts to advance the boundaries of the law using standards of international human rights and humanitarian law have had little or no impact. It is overwhelmingly important that activist focus on rights is linked to a critical examination of the criminal law and the acknowledgement that inflexible penal consequences for human rights violations may be the only efficient deterrent. And the failure of the Sri Lankan State in this regard should be recognized as a failure in respect of all its citizens, Sinhala, Tamil and Muslims. The brutality of the State has not been limited to those of a particular ethnicity alone. Instead, though the ethnic factor has lent a specific dimension to human rights abuses committed during the conflict in the North/East, victims in all parts of the country still wait for redress. This is a basic fact that needs to be acknowledged.