Kishali Pinto Jayawardene
It was to be expected that the performance of the Sri Lankan government before the members of the Committee Against Torture (CAT) in Geneva on the 8th and 9th of November 2011 would be evasive and problematic. However, the reality was far worse than the uneasy expectation. In actual fact, the State Party submission and its responses to the penetrating questions posed by Committee members was an exercise in outright deception if not chicanery.
No attempt at serious answers
The Committee was considering Sri Lanka’s Third and Fourth Periodic Reports, submitted under the United Nations Convention Against Torture. The last State Party report was lodged in 2005 with a follow-up response in 2007. Ludicrously however, the Government’s response this time around by a senior team of state officials led by former Attorney General and now legal advisor to the Cabinet Mohan Pieris, was far worse than in 2005.
There was not even an attempt at seriously tackling problems leading to impunity and the breakdown of the Rule of Law, all of which had received grave attention by the Committee from 2005. Instead, what we saw was spine chilling theatrics, casual dismissals of the abject failure of constitutional and legal remedies theoretically in place for the prevention of torture and flippant reactions to questions going to the very root of Sri Lanka’s status as a functioning democracy.
Extreme crisis of justice
Some statements by the delegation were so outrageous as to evoke hilarity if they were not so tragically symptomatic of the extreme crisis of justice that Sri Lanka faces. One good example related to the value of the habeas corpus remedy for ‘disappeared’ or detained persons. The honest answer to queries posed by Committee members would have been to acknowledge obstacles that impede the full functioning of habeas corpus and to state that steps were being taken for necessary policy and legal reform. Previous delegations would have proceeded on these lines as, despite defending successively bad government briefs, the delegations were also conscious of the need not to render these sessions, a joke.
However, this time around, we had the head of delegation informing the Committee that since the fundamental rights remedy had come into use, resort to the habeas corpus remedy had become less ‘fashionable’. This answer begs the question as to whether the Sri Lankan delegation was under the mistaken impression that it was attending a designer event in Paris or Milan rather than a serious session on international law and treaty obligations.
Quite apart from the quite unbearably frivolous nature of this response, it was also factually incorrect as meticulous documentation in recent times indicates the desperate lengths to which anguished parents and family members go to file habeas corpus applications, braving the most fearsome of risks while doing so. Just last week, the media reported a habeas corpus application being filed by the parents of a son who had ‘disappeared’ in 2008, days before he was due to travel overseas for education.
Consequent to his disappearance, they were sent demands for exorbitant sums of money for him to be released. Their pleas to the authorities had gone unheeded. Indeed, the failure of the habeas corpus remedy in Sri Lanka is an excellent indication of the failure of justice to the Sinhalese as well as the Muslims and Tamils. The failure of the State to enact an effective witness protection system, laws delays and outright intimidation of court staff by state officers cited as respondents in the applications have made this remedy good only in theory. This failure extends across all ethnic boundaries. Judicial insensitivity and a deeply conservative mindset are also problems but on a different level.
Rejection of unconvincing explanations
The fact of the matter is that considered judicial responses to the ancient remedy of habeas corpus, (aptly remarked by Coke to be the greatest legal inheritance possessed by the subject), leads to concrete steps being taken by the authorities where there is injustice. In contrast, the fundamental rights remedy, as undoubtedly glamorous as it may be, is without much deterrent effect even if immaculately reasoned judgments are handed down. For decades, we have heard Supreme Court judges complaining bitterly that their strictures on abusive state officers have been ignored and that torture has not declined. Procedural restrictions that hedge this remedy such as the necessity (generally) to file within one month of the violation also render it impractical for victims of enforced disappearances.
Space constraints prevent further reflections on the lamentable inanity of the Government’s submissions before the CAT Committee except to say that there appeared to be immediate discrepancies in the statistics advanced by the delegation as to the number of indictments from 2006 to 2011. A peculiar feature also related to its unconvincing explanation that attacks on lawyers could not be investigated successfully as the victims could not assist in identifying those responsible.
Are we then to assume that the burden of investigation has now been passed from the police to the victim? A critical and comprehensive examination of the submissions is appropriate for another occasion but within the coming weeks, the CAT Committee will release its Concluding Observations in regard to Sri Lanka. The outlook is far from promising.
Focusing on what really matters
This column has repeatedly said it before and will say it again. Piecemeal cover ups that attempt to disguise this country’s near total breakdown of the Rule of Law achieves precisely nothing. Prosecution of a few service personnel or police officers whilst safeguarding the current power apparatus is not the answer. Even those who once argued for a benevolent monarchy for Sri Lanka must surely concede this, given the disastrous events that are unfolding around us. Ultra nationalist Tamil and Sinhalese rabble rousers based overseas and locally as well as government propagandists all share an absolute disregard for this country’s well being. Unfortunately, these are the shrill voices who attack those with whom they disagree, (whether on accountability or university autonomy), much in the form of rabid canines. It is time that the moderates grabbed the public space back from the hate mongers, the opportunists and the charlatans.
The moderates must claim the discussion to be predominantly about the abolition of the Executive Presidency. The debates must be about Sri Lanka’s compromised police, prosecutors, judiciary and public institutions. Sugar coating these bitter realities with laughable theatrics at international treaty sessions or putting forward reports of Commissions of Inquiry and unworkable National Action Plans on Human Rights must be rejected with the contempt that they richly deserve.