Focus on Rights

The ongoing conflict in the country has often been ingeniously used by governments of the Peoples Alliance as well as of the United National Party to justify the most horrendous abuses. Clearly however, the abuse of the law is not limited to periods during which conflict has heightened in Sri Lanka. Indeed, the failure of constitutional guarantees and judicial interventions are equally apparent during those past rare intervals when there has been a cessation of hostilities and the emergency had been allowed to lapse.

During these intermittent periods, brutal practices of arrest, detention and interrogation by the police, particularly towards petty criminal offenders and persons mistakenly suspected of crime, have been well documented. Clearly, the long shadow cast by unlimited powers under the emergency has continued to encompass custodial abuse, even during a time when the normal law was in force. It was as an effort to meet this general situation of non implementation of the rule of law that the 17th Amendment to the Constitution was enacted by the House in 2001. Its negation is however, yet continuing, despite pious promises by the Minister of Constitutional Affairs who heads the Parliamentary Select Committee on this issue.

The long shadow cast by emergency law is well illustrated in a relatively recent instance which owes nothing to emergency measures taken in a context of conflict. This case concerned a rights plea filed by an Assistant Superintendent of Customs R.P.A.L. Weerawansa, who was arrested by the Criminal Investigation Department (CID) on 30th of April, 1996 under Section 6(1) of the PTA. The impunity with which emergency law is utilized is seen by the circumstances of his arrest and detention. First, he was detained up to the 2nd May, 1996 under PTA Section 7(1). From 2nd May to 2nd October of that year, he was detained by ministerial orders under PTA Section 9(1). Thereafter, he was transferred into the custody of the Customs and detained from 3rd October to 31st December under a magisterial remand order.

Yet, the entire arrest and detention was ruled to be unconstitutional by the Supreme Court on the basis that there was no reasonable suspicion established of any unlawful activity on his part (Weerawansa v Attorney General ((2000) 1 SLR 387). It was held that his arrest as well as his subsequent detention was unconstitutional. The subsequent detention in terms of PTA Section 9(1) by ministerial order, ostensibly on the basis that there was "reason to believe or suspect" that such person is concerned in unlawful activity was also ruled to be unconstitutional as the continued detention had been at the instance of the CID, which had merely informed the Defence Minister, (then President Chandrika Kumaratunge) of their willfully false and unreasonable conclusions, thereby misleading her. There had been no independent exercise of judgment by the Defence Minister.

Interestingly, Justice MDH Fernando writing for the Court, took the view that the later remand orders by the Magistrate, Harbour Court made under the ordinary law, was also in violation of Mr Weerawansa's rights. Several such orders of remand had been made even though the Magistrate or the acting Magistrate did not visit or communicate with him. This offended a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed. This was not an obligation that could be circumvented by producing reports from the police. A previous judicial view expressed in Farook v Raymond (1996) 1SLR, 217) that such remand orders, where they concern a patent want of jurisdiction, cannot be safeguarded under the cover of being 'judicial acts' with consequent immunity from fundamental rights challenge. It was the executive which had the custody of Mr Weerawansa from 3rd October, 1996 and so his detention was by unlawful executive or administrative action.

Decisions such as these had powerful impact on individual petitioners who were given releif from the excesses of state officials. However, it is a fact that the jurisprudence of the Court did not lead to a noticeable reining in of the use of emergency powers by governments. This was due to several reasons, not the least of which was that public interest litigation asserting the rights of detainees was not possible within the restrictive provisions of Sri Lanka's Constitution, unlike in the Indian constitutional context. Thus, where arrests and detention under emergency law were specifically concerned, many of the detainees themselves, once freed from the shackles of unjustified detention, were reluctant to push the issue further in the public forum, so as to urge action beyond individual relief. And though individual decisions were many, particularly during the early nineties and thereafter, there was no collective momentum for a push for actual legal reform. Ideally, such a campaign could have positioned constitutional and statutory reform as its core objective, having in mind an overall revision of the applicable investigative and prosecutorial structures. However, this was not to be. The consequences of the absence of such a campaign are seen currently where emergency law is now being used to its fullest extent with the inevitable result that innocents are caught up in its toils.

In the second instance, though the Supreme Court endeavoured to restrain state power to the fullest extent possible in terms of its constitutional powers, it signally failed to address the question of enforced disappearances. The constitutional omission of the right to life as well as the omission of a specific prohibition on disappearances meant that family members of the disappeared could not directly come before the Court.

It was only very recently that Sri Lanka's Court in some decisions affirming a right to life as negatively implied from exisiting constitutional provisions, held that the next-of-kin, intestate heirs or dependants would be able to sue the wrongdoers for the unlawful death so caused(Perera vs Iddamalgoda 2003 [2] SriLR, 63), Wewalage Rani Fernando case, SC(FR) No 700/2002, SCM 26/07/2004)..But these were recent developments and in any event, were restricted to two or three cases. It was not a principle applied generaly across the board. None of these cases moreover involved violation of rights in a situation of conflict. Their general applicability is not a matter that ought to be taken for granted. The legal remedy available for these victims was, rather, to invoke the jurisdiction of the Court of Appeal in writ applications of habeas corpus. However, this remedy had proved to be largely inefficacious due to the tremendous delay in the final determination of the applications.

These are matters of utmost importance that need to be addressed by the legal community, officers of the Attorney General and the ministerial arms of the government. The many deficiencies both in the theoretical formulation of laws and their practical implementation cannot be dismissed by superficial legal reform or by absurdities such as the so called International Covenant on Civil and Political Rights Act No 56 of 2007.

The demonstrated non-working of the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 is another good case in point as has been repeatedly pointed out in this column. Instead of laws with grandiose titles and no little impact in practical reality, we need to see a concerted and genuine effort by the government to address the implementation of these laws for the sake of its citizens. Most unequivocally, we are yet to see manifestation of this commitment.

The long shadow of custodial abuse