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SUBMISSION TO THE CONSTITUTIONAL REFORMS

COMMITTEE
Sri Lanka

By
THE ASIAN HUMAN RIGHTS COMMISSION
Hong Kong

This submission is made on behalf of the Asian Human Rights Commission based in Hong
Kong and also on behalf of Mr Basil Fernando, Sri Lankan citizen and Attorney-at-Law.

Particular concern addressed by this submission


The particular concern this submission addresses is the restoration of the supremacy of law
and the reform of law enforcement agencies, the police service in particular, the Attorney
Generals Department, and the judicial institutions.

14th January 2016


1

In this submission we argue,


That the state of the law enforcement agencies, particularly the policing service, and
other branches of the administration of justice, the Attorney Generals Department,
and the judiciary in Sri Lanka is in a state of serious collapse;
So long as this state of collapse remains, it would not be possible to implement any
constitution within the framework of the rule of law under the principles of the
Supremacy of law;
What this implies is the very status of the concept of legality is under serious threat
in Sri Lanka due to constitutional experiments of 1972 and 1978, in particular;
Therefore, it is futile to create a constitution that cannot be implemented;
It is thereby imperative that those engaged in the drafting of the newly proposed
constitution should address the matter of enforceability of the constitution through
the law enforcement agencies and the institutions of the administration of justice as
an issue of paramount importance;
This implies that:
A. The Constitution must provide conceptual and a practical programme for
revitalising the law enforcement agencies, particularly the policing service and
other branches of administration of justice such as the Attorney Generals
Department and the judiciary.
B. That such conceptual and practical measures should address the issues of
providing funding for a functional system of law enforcement and judiciary,
whereby the dysfunctional state that it is in now could be brought to an end; A
constitution does not provide a conceptual framework for adequately funded
institutions of justice, which is a dead letter from the very start.
C. There are other measures, that should also be made to ensure the establishment
of the rule of law through a functioning law enforcement and judicial
institutions.
D. Among other things, this conceptual framework can be made through a clear and
a strong statement of the basic structure of the state of which a functional law
enforcement agencies , in particular the police and the judiciary as an integral
part; this basic doctrine can be derived from the series of Indian cases known as
the Judges cases beginning with 1) The Kesavananda Bharati v State of Kerala
and 2) the case of Supreme Court Advocates on record Association and another (
Petitioners) versus The Union of India, decided at the end of the year 2015.
E. The authority of the courts which has been seriously undermined should be
reinstated to a position where the courts could function as a separate branch of
government, functioning under the separation of powers principles and the
checks and balances as developed in the constitutional theory (vide The
Federalist Papers); The issue of the impeachment of the Superior Court judges
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should be finally dealt with in terms of the internationally accepted standards.


Regarding the appointment of the Superior Court judges the phrase, in
consultation with the Chief Justice should be interpreted in the same manner as
it is being done in India in a series of judges cases mentioned above, to mean
that primacy in selection must be in the hands of the Chief Justice and a
collegium of senior Supreme Court judges.
F. At the same time, the meaning of the authority of courts, should include
adequate funding for functional system of justice so that adequate number of
judges, court building and all other things that go with it, and adequately funded
criminal investigations branch should be included.
G. The issue of the Commission against Bribery and Corruption must also be dealt
with as part of the obligation of the state to use its coercive power to ensure that
all those who work as its officials abide by law meaning that a corrupt system
is a lawless system and lawlessness and constitutionality is incompatible.
H. In drafting the section on human rights, the right to life, right to a fair trial
without undue delay and an effective remedy for violations of rights which go
far beyond the Article 126 of the 1978 Constitution should be envisaged. Mere
declarations by the Supreme Court and mere symbolic compensation has not
contributed to the ending of serious human rights violations. Therefore, this
constitutional remedy must be strengthened to be in keeping with Article 2 of the
International Covenant on Civil and Political Rights (ICCPR).
I. Eliminating extra judicial killings should be carefully drafted to avoid the
repetition of mass killings that have taken place in Sri Lanka over several
decades after their arrests have been secured. In the same manner, elimination of
torture and ill treatment, with an effective remedy to prevent it should become an
integral part of the constitution, given the extremely bad record Sri Lanka has
had regarding this matter.
J. Delays in adjudication including delays in investigations in filing of prosecutions
and adjudication in the courts, should be made into a violation of a fundamental
rights to justice and should justiciable both under fundamental rights and other
legal remedies.
These are some of the recommendations in terms of the reflections made in these
submissions. We may make further submissions on these and other matters within the short
time available.

Contents
Particular concern addressed by this submission ................................................................................ 1
CHAPTER 1 - The Danger of creating a paper Constitution................................................................ 6
1.1
A Letter sent to Mr Lal Wijeyanayeke, Chairperson of the Constitutional Reforms
Committee ........................................................................................................................................... 6
1.2

A Dysfunctional System ......................................................................................................... 8

1.3

Justice System as a Threat to Democracy and the Rule of Law ........................................... 14

1.4
UNHCR Finds Fault with the Police, the Forensic Pathologist, The Attorney General and
the Supreme Court ............................................................................................................................ 17
1.5

Abysmal lawlessness and the zero status of citizens ............................................................ 21

CHAPTER 2 - The Need for Police Reforms ..................................................................................... 26


2.1
A practical illustration of the actual state of the Sri Lankan policing service as illustrated by
the recent Embilipitiya incidents and the challenge to the drafters of the new constitution on the
need to address this issue; A Statement issued by the Asian Human Rights Commission entitled the
Constitution making and brutal police murder at Embilipitiya; .................................................... 26
CHAPTER 3 - Collapse of the Criminal Justice System ..................................................................... 29
3.1
How 63 to 10,000 Ratio of killings by security forces in 1971 caused the collapse of the Sri
Lankan Criminal Justice System ....................................................................................................... 29
3.2

Legal Systems Exposed to Adverse Circumstances BecomeEndangered and Extinct ......... 33

3.3

Sri Lanka: A murder tolerating nation .................................................................................. 37

CHAPTER 4 - Status of legality displaced by 1972 and 1978 Constitutions ...................................... 39


4.1

The displacement of the criminal justice process and its subsequent collapse ..................... 39

CHAPTER 5 ......................................................................................................................................... 41
The adverse impact of delays in the judicial process and how it has adversely affected all the basic
principles on which a credible system of criminal justice is based; ..................................................... 41
5.1

Delays in adjudication as a manifestation of learned helplessness ....................................... 41

CHAPTER 6 ......................................................................................................................................... 43
The loss of credibility of the Attorney Generals Department due to adjustments to the executive
presidential system; ............................................................................................................................... 43
6.1

The Attorney General plays a negative role:......................................................................... 43

CHAPTER 7 - HUMAN RIGHTS...................................................................................................... 44


6.1

Right to Engage in Demonstrations ...................................................................................... 44

A letter written to the National Police Commission of Sri Lanka .................................................... 44


6.2

Right to life ........................................................................................................................... 47

Article 6 of the ICCPR Againts arbitrary deprivation of life ............................................................ 48


6.3

The loss of freedom of expression and the intimidation of the media .................................. 49

6.4

Right to fair trial.................................................................................................................... 49

CHAPTER 7 ......................................................................................................................................... 52
7.1
The failure to provide effective remedy to violations of human rights in terms of the Article
2, of the International Covenant on Civil and Political Rights; ........................................................ 52
4

Inadequacy of Article 126 of the 1978 Constitution on providing a remedy for human rights
violations ........................................................................................................................................... 52
CHAPTER 8 Inadequate Remedies for violations of rights ................................................................ 53
The failure to provide adequate funds to maintain a functional law enforcement and judicial system;
the resulting dysfunctional state of the Sri Lankan law enforcement and judicial systems. ................. 53
8.1

The need to allocate funds for police reforms - Letter to the Minister of Finance .............. 53

8.2
Letter to the Ministry of Finance calling for adequate financial allocation towards the
modernisation of the institutions of police, justice, corruption control, and for the effective
implementation of the new witness protection law in Budget 2016 ................................................. 56
Response of the Asian Human Rights Commission to the Call for Proposals in regard to the
formulation of the 2016 Budget - issued by the Ministry of Finance, Sri Lanka.................................. 57
Making adequate financial allocation to modernising the policing institution ................................. 57
Financial allocations to uplift the judicial institutions in Sri Lanka ................................................. 58
Budgetary allocations for creating an effective agency to control corruption .................................. 59
Making budgetary allocation for the effective implementation of the new witness protection law . 60

CHAPTER 1 - The Danger of creating a paper Constitution


1.1
A Letter sent to Mr Lal Wijeyanayeke, Chairperson of the Constitutional Reforms
Committee
Dear Mr Wijayanayake,
Greetings from the Asian Human Rights Commission in Hong Kong.
I am writing to you, first, to congratulate you on your appointment as the Chairman of the
Constitutional Reforms Committee.
I wish you all success, a task which of course is one of the most important and one which
will affect the future of Sri Lanka.
A notice announced with your appointment and that of the Committee, lists 20 topics under
which, opinions are sought from the general public.
While I wish later, to make a lengthier submission in terms of the topics suggested, the
purpose of this particular note, is to bring to your notice one of the possible dangers that
should be very deliberately addressed, if the new constitution is to effectively contribute to
the ending of the colossal crisis in constitutionalism, that presently exists in Sir Lanka and
which has adversely affected the legal system as a whole, and in particular the criminal
justice system - the medium through which all laws are finally implemented. This
constitutional crisis has also affected the entire political system.
The danger I am trying to highlight, is the creation of a good constitution on paper on the
one hand, and the continuity of the bad system that we presently have as a result of
constitutional tom-foolery which has taken place in Sri Lanka since the adoption of the
1972 and in particular the 1978 Constitutions.
The adoption of a paper constitution may not be a difficult task if, there is adequate
parliamentary majority to support such an adoption. This is what has happened also in
certain other countries and one of the glaring examples that I can recall is the adoption of the
new Constitution in Cambodia in 1993. This Cambodian constitution is a perfect piece of a
good liberal democratic constitution on paper. However, the Constitution has had no
practical value. The older system which prevailed since the devastation caused by Khmer
Rouge takeover of Cambodia, that wiped out the pre-existing system and which was created
by the French during colonial rule of Cambodia between 1975 and 1979, - thus in a period
of just 4 years, all previous gains in the area of constitutionalism was brought to an end.
After the defeat of the Khmer Rouge by the end of 1979, a new administration was
established, which was created by the Vietnamese experts who were educated in the
communist model of law. Thus, between 1980 and 1992, when the UN Transitional
Authority for Cambodia (UNTAC) was appointed, there was a new system build on socialist
lines which had nothing in common with liberal democracy.
In 1993, when the new constitution was adopted, it was drafted, purely on the basis of
correct principles of liberal democracy, but there was no attempt to create measures to
dissolve the system created between 1990 and 1992. The result that we can see now aafter
about 22 years, is that the new constitution is of no practical value at all. The system created
between 1980 and 1992, is what exists in reality. One of the glaring examples is that the
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judiciary which the new constitution declares as an independent branch of the government
has no independence at all. The judiciary has no power to monitor the executive actions,
however, unacceptable such executive actions may be, when compared with the provisions
of the new constitution. Examples can also be given from other countries about this very
particular problem.
In Sri Lanka, when the 1972 republican constitution was introduced the then constitutional
affairs minister, made the following remark which revealed the drastic nature of change
which was intended to be introduced by this new constitution which impliedly meant the
replacement of all the basic notions on which the Soulbury Constitution, was based upon.
This is not a matter of tinkering with some Constitution. Nor is it a matter of constructing a
new superstructure on an existing foundation. We are engaged in the task of laying a new
foundation for a new building which the people of this country will occupy (Decisions of
the Constitutional Court to Sri Lanka Vol. 1,1973 p.5)
This dismantling of the fundamental notions of the Soulburry Constitution, was continued
more drastically with the 1978 Constitution. What is spoken popularly today as the
executive Presidential system was not a mere tinkering of the old liberal democratic system,
but a displacement of the liberal democratic system and the creation of a completely new
system.
The system introduced by the 1978 Constitution was implemented from then, till the
January 2015 elections, with only one interruption which was the adoption of the 17 th
Amendment to the Constitution in the year 2001. However the 17th Amendment did not go
as far as re-instituting the liberal democratic form of governance in Sri Lanka. In any case,
the 17th Amendment was displaced by the 18th Amendment which went even further than the
original conception of a power model introduced by the 1978 constitution.
The point I am trying to make is that in Sri Lanka, at present, there is in existence a system
which is very different to the liberal democratic model that was introduced by the Soulburry
Constitution. This system that exists in reality is what requires displacement. That cannot be
done by merely re-stating the liberal democratic framework of constitutionalism.
What is required is to develop a constitutional strategy to displace and even outlaw the
actually existing system.
This requires a much more, subtler form of approach than mere re-statement of the
principles.
Let me illustrate this further; the constitution that is to be drafted will naturally state that the
judiciary is a separate branch of government and that the independence of the judiciary is
one of the basic constitutional principles in Sri Lanka.
However, such a statement does not alter the system that exists in reality at present, where
the independence of the judiciary has been undermined, and so drastically. Such
undermining has been done first, by the state not providing adequate funding to ensure a
functioning system which is able to enforce the rule of law in Sri Lanka.
The other way of undermining of the independence of the judiciary has been the wrongful
appointment of judges, and generally bringing down the quality of the judicial institutions.
A litany of other ways by which the judiciary has been undermined has been well
documented, by many critics, and I do not intend to repeat these, here.
The issue is how the virtual dysfunctional state of Sri Lankan judicial institutions and also
the associated law enforcement institutions, namely the institution of the policing service
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can be changed, so that people in Sri Lanka will once again have a functioning legal and
judicial system.
In order to arrive at the kind of measures that could be introduced through the new
constitution, it would be necessary to discuss thoroughly about the ways by which the
existing system could be modified or changed, to ensure that such a judicial system is not
merely conceptually independent but also will be independent in reality.
This means that in the drafting of the constitution, concentration should not only be on reinstating the correct principles of liberal democratic constitutional traditions, but also on
finding ways to bring an end to the existing practices that contradict the liberal democratic
traditions. Again, to use the example of the judiciary, what this would entail is to provide
measures in the constitution to ensure that judicial and law enforcement agencies are
adequately funded, so that it could overcome the existing problems, for example such as
extra-ordinary delays, allegations of corruption, and all-pervading inefficiency which has
become very much a part of our judicial system. If the new constitution does not create
measures to alter this situation, and if the new constitution allows these defects to continue,
then, the new constitution will not contribute to achieving the practical aims of honouring
peoples criticisms against the existing system. 2015 January 8, and August 17th elections
marked, important intervention of the peoples of Sri Lanka, who were responding to a call to
have the entire existing system changed.
What matters in the end, is not whether we will have on paper, a good and a beautiful
constitution, but whether we will succeed in altering the colossally failed system that exists
at present.
Therefore, I suggest that in the drafting process, this problem of altering the system that
exists in reality should be brought to bear, with the view to develop the possibility of a
functioning system of law which would be the foundation, for peoples progress in the
future.
Thank you,
With my best regards,
Basil Fernando
Right Livelihood Laureate
Director of Policy and Programmes
The Asian Human Rights Commission

1.2

A Dysfunctional System
A peculiar feature that emerged through the study of the problems relating to the policing
system in Sri Lanka is that the government sources, through various commissions, have
identified the same problems which have been substantiated by independent sources.
That the system has become dysfunctional is a common finding. About the manifestation of
such dysfunctionalism there is no controversy. That a radical change is needed is also
commonly acknowledged. However, in terms of any initiatives for change the issue of
policing is not considered a priority by the government and even independent sources appear
reluctant to make any determined effort in this direction. There also seems to be an
underlying fear that any significant attempt to deal with the dysfunctional nature of the

system may have adverse consequences on the country's political system and social life as a
whole.
Such reform seems to be regarded as too formidable a task that no one is really willing to
venture into. Besides this, there is also apparently an underlying fear that initiatives to
change the habits that have entered into the system and the incumbents of the system may
cause such retaliation that the political leadership does not feel competent to deal with. It is
not the factual elements regarding the failed political system of Sri Lanka that creates
controversy, but as to whether these problems can, or should be addressed. The suggestion
made in this paper is that it is this overall problem of how to deal with these issues that
needs attention, rather than diagnosis of the various aspects of the ailments that affect
policing in Sri Lanka. Sri Lanka's Dysfunctional Criminal Justice System
The premise
Attempts to reform policing have been initiated in Sri Lanka more than once. Still the
situation remains critical. The hypothesis taken in this article is that reform of dysfunctional
policing system requires a discourse of more fundamental issues such as the nature of the
political system within which policing has to take place.
This article speaks of policing only in areas outside the conflict zone of Sri Lanka in the
north and the east. In many parts of the north and east large areas are outside the writ of the
Sri Lankan police service. In some parts rebels claim to have their own police and
judiciary. Such rebels include not only the LTTE but also some armed groups that are
opposed to the LTTE. This work does not address the policing issues relating to these
areas. It deals with those areas of the country within which the police system still operates
under the ordinary law and legal procedures.
Studies on the policing system
The Asian Human Rights Commission has closely studied the issues relating to policing in
Sri Lanka for over ten years now Some of the publications based on these studies are:
Article 2, Vol. 1, No. 4, Article 2, Vol. 3 No. 1,2 a book entitled An X ray of the Sri Lankan
policing system & torture of the poor,' and several reports submitted as shadow reports to
UN agencies. Much of the material produced is available on the interne.'
There is no significant police reform initiative taking place in Sri Lanka at the moment.
Previously there had been some commissions appointed by former governments which
produced reports analyzing the problems facing the policing system and which made many
recommendations for change. Given the drastic nature of the political and social changes
that have taken place in the country, the contents of these reports may seem somewhat
obsolete by now However, for the purpose of record as well as to provide some reference to
the historical roots of the present day policing system some mention of these reports may be
useful.
A historical perspective
The first of these reports is known as the Soertsz Commission Report which derived its
name from the chairperson of the Commission, Justice Francis J. Soertsz and this report was
submitted in December 1946. The title of the report was 'Sri Lanka police service
suggestions for improving its efficiency and effectiveness.' This was published as a sessional
paper and covers such topics as the composition of the force; the conditions of the service
and selection of officers for promotion and transfer; procedure for investigations of
complaints made by the public against the police; the powers and duties of the police,
especially in relation to preliminary investigations of offenses, the arrest and custody of the
accused and suspected persons; the institutions of prosecutions in court and the expeditious
conduct thereof; amendment of the police ordinance and of other
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Some general observations on the previous studies


Already in 1946 a serious crisis in the policing system was perceived and by 1970 much
graver problems had surfaced. Then by 1995 a completely new set of problems had arisen
due to larger politicization of the system and the introduction of paramilitary elements as
policing units such as the Special Taskforce. None of the recommendations of the above
commissions were put into effect.
The 17th Amendment to the Constitution- October 2001
Perhaps the 17th Amendment was the most significant attempt made so far to recognize the
serious problems in the Sri Lankan policing system together with several other public
institutions. The central problem that this amendment tried to address was the politicization
of the public services. This amendment provided for the appointment of a Constitutional
Council who would have the obligation to appoint the commissioners for several
commissions including the National Police Commission (NPC).5 The NPC had the powers
of appointment, promotion, transfer and disciplinary control of all police officers except for
the Inspector General of Police. It also had the duty to establish a public complaints
procedure. The first commission came to be appointed in November 2002 and by the end of
the term of the first batch of commissioners the Constitutional Council had ceased to exist
so that it was not possible to appoint the new commissioners. Ever since, there have been no
appointments to the commission, by the procedure prescribed by the Constitution. In 2006
the Executive President made appointments to the commission bypassing the provisions of
the constitution. As the NPC derived its authority form the constitution itself, the
appointment of its members bypassing the constitution has raised questions about its
legitimacy.
Identification of areas needing reform
At the moment there are no reform programmes being undertaking by the police. However,
there are many areas that have been identified by some senior police officers, international
experts, as well as the public as major areas that need to be addressed in any serious attempt
at reform. These are, the elimination of criminal elements from within the policing system;
to reestablish command responsibility within the police hierarchy; the establishment of a
credible system of criminal investigations; the elimination of torture as the most commonly
used method of criminal investigation; the training of police in the more sophisticated
methodologies of investigations including forensic training, measures to ensure police
attendance in courts and compliance with court orders; the establishment of a proper system
of disciplinary control within the police and the establishment of a credible public
complaints procedure. The elimination of criminal elements from within the policing
system
The Inspector General of Police himself recently identified the criminal elements within the
police together with soldiers and deserters as being among the culprits for some of the very
grave crimes in the country such as abductions, disappearances and murder which increased
sharply at the end of 2006 and continuing into 2007.
Sri Lanka's police admitted Tuesday that its own security personnel have been involved in
kidnappings for ransom and vowed to crack down on mounting abductions and killings of
civilians. Police Inspector General Victor Perera said a "large number" of police officers and
troops had been arrested on charges of abduction and extortion.'
The former Inspector General of Police who retired in 2006 also pointed out the criminal
elements within the policing system.

10

While the IGP, referring to the Auditor General's latest report on the
PoliceDepartment, is quoted as saying"...that corrupt officers were liable to be blacklisted,
taking into account the corruption and fraud cases pending against them."In the same article
he went on to say:"One of 'the shocking revelations highlighted in the AG's report was
where certain senior officers had swindled thousands of rupees in the police cash reward
scheme. Cash rewards of Rs. 1,500 were regularly paid to individuals or groups of police
officers for outstanding service in the field but reportedly, the audit report highlighted
occasions where the figures were altered to read Rs. 15,000."
And the IGP went on to remark that:
"...the audit report on individual police stations were so serious that if action was to be
taken, then most officers would be liable to be sacked."'
In the aftermath of the assassination of the High Court judge, Arnbepitiya, J, by a drug lord,
there was much public criticism about high ranking police officers being linked with drug
dealers and underworld figures.' However, perhaps it was the assassination of Inspector of
Police (IP) Douglas Nimal and his wife that brought the most acute criticism against the
police connivance with drug dealers. IP Douglas Nimal who was investigating several drug
related crimes was arrested on false charges and later released by the Attorney General. He
complained that some persons, including high ranking police officers, had implicated him in
order to obstruct his investigations. He was murdered shortly after his release while
traveling to pursue his complaints.
Dealing with the internal situation of the serious involvement of police officers in crime
should be one of the primary aims of any police reform. A reform that leaves out this aspect
is very likely to receive very little public attention, support or credibility. Perhaps the
example of Hong Kong where a similar situation was successfully addressed through an
agency outside 'the policing system itself, the Independent Commission Against Corruption
(ICAC) should be seriously studied.In recent times there is a widespread complaint that this
supervision often does not take place.
To reestablish command responsibility within the polic e hierarchy
One of the factors that undermines the command structure of the police was the involvement
of the police in gross human rights abuses during the periods when emergency laws and anti
terrorism laws prevailed. In the post independence period, in the early decades such situations
were few and sometimes the officers who engaged in such acts were disciplined. However,
when various insurgencies broke in police officers together with military officers were used
to eliminate insurgents which meant that they were allowed to abduct persons, keep people in
illegal detention, to torture them and even to kill them and dispose of their bodies. The
generally estimated number of such killings at the hands of the police and the military in
1971 when a minor rebellion lead by a small group of persons was crushed ferociously by the
Sri Lankan government is around ten thousand. No official inquiries have been held into this
event. In the second phase of a rebellion by the same group, the JVP between 1987 and 1991
an official figure of around thirty thousand persons disappeared mostly in the south.
Commissions were appointed to inquire into the periods in which disappearances were
described as abductions followed by assassinations and the disposal of the bodies. These
were also done by the police and the military personnel aided by paramilitary groups.
The loss of command responsibility has been discussed from many points of view. One
common point of reference is the politicization of the police by which is meant the
politicians playing a direct role in the command responsibilities of the organisation. The
debate on the 17" Amendment to the Constitution mentioned above was entirely on this
theme. Political influence over the police is perceived to have extended to all aspects of the
administration and often it is alleged that it also influences criminal investigations. The
influence on the administration is on the selection of persons by way of recruitment as well
11

as promotions purely on the basis of connections to individual politicians or a political


party.
This also often affects transfers where one of the common fears is people being transferred
to far away places or conflict zones as punishments for non-compliance with the demands of
political elements.
From the point of view of maintaining command this meant a tremendous lowering of
standards and the loss of internal guidelines for the maintenance of hierarchical relationships
and codes of conduct. These periods have also destroyed the morale of the law enforcement
agency.
The interference into investigations is that either due to direct interference or indirect forms
of influence statements are not recorded or investigations are not proceeded with. There are
instances when in the midst of sensitive investigations the investigating officers are
transferred from their positions. Over a period of time many officers also learn "to read what
will be approved and not approved by their political masters." This behaviour can be so
ingrained that they will avoid some investigations altogether, for example into cases such as
extrajudicial killings, abductions, disappearances and the like.
The establishment of a credible system of criminal investigations
One of the most commonly expressed criticisms regarding policing in Sri Lanka by persons
from within the system itself, by local and internal critics including some UN agencies is
that in recent years the Sri Lankan police have not resolved any of the major crimes that
have taken place in the country.
Due to political interference often subordinate officers can become even more powerful that
their superior officers. On the other hand when subordinate officers perceived that their
superior officers behave in a manner to unduly cooperate with politicians the moral authority
that such officers have is also lost. The instances are many when politicians deliberately
undermine the high ranking officers in a way to get them to toe the line.
These crimes includes massacres such as the extrajudicial killings of the 17 aide workers in
Muttur; killings by the military as well as insurgent groups (LTTE and other armed groups
opposed to the LITE); killings of journalists and other activists including human rights
activists; large scale abductions and disappearances 'throughout the country including in the
capital Colombo. There are also of allegations about large scale corruption.
Under the Department Orders the specific duties of supervision are assigned to superior
officers. An officer in charge at a police station has very specific duties regarding all the
officers linked to a police station. An Assistant Superintendent of Police has duties to attend
all police stations regularly at short intervals to read all the books maintained at the station as
well as to be personally present at the crime scene in the event of investigations into serious
crimes, were some of the requirements prescribed in the Departmental Orders.
Measures to ensure police attendance in courts and compliance with court orders
One of the revealing factors about the nature of the policing system in Sri Lanka is a finding
by the same committee which submitted its final report in April 2004 and identified the failure
of the police to comply with court orders to attend court as one of the major reasons for the
delays in courts. The committee made the following recommendation:
The Committee makes the following additional recommendations pertaining to the Police in
the context of advancing best practice:
a) Compulsory attendance: The Committee recognises the need to

12

introduce administrative measures requiring Police Officers to attend Court on a compulsory


basis, in view of the frequency with which Police Officers obtain leave and abstaining from
Court sighting inappropriate grounds, which has been observed to result in unnecessary
disruption of Court proceedings in the recent past.
In this regard the Committee recommends that the Ministry of Justice advise the Judicial
Service Commission ("JSC)) and the judges Institute to educate Judicial Officers on the
necessity to take prompt and appropriate action against Police Officers who default on
appearances on inappropriate grounds.'
The recognition of this factor is significant in that it shows a breakdown of the link between
the courts and the police. Under the present circumstances it is difficult for the magistrates to
give the necessary orders to the police relating to investigations and the matters relating to the
basic rights of citizens. This breakdown may be traced back to times of the beginning of the
insurgencies in 1971. Ever since the police have used the excuse of having to attend to other
duties such as the security functions or for providing security for politicians as matters that
need to be given higher consideration than attendance in court. The police hierarchy has done
very little to correct this situation despite of a government appointed committee having
recognized this as one of the fundamental aspects affecting the administration of justice.
The establishment of a proper system of disciplinary control within the police and the
establishment of a credible public complaints procedure
It is also admitted that the disciplinary process within the police is quite primitive and the
safeguards for complainants is very limited. The National Police Commission has itself
pointed out that despite of large numbers of complaints received against police officers the
number actions taken against them are very few. The 17th Amendment to the Constitution
itself recognized the need for the establishment of a public complaint procedure. The article
155G requires that such procedure should be established. In January 2007 by a Gazzetted
notification the National Police Commission announced such a procedure. However, still the
system of the conduct of investigations has not been changed.
The problem of police discipline is linked to the more fundamental problems of a
dysfunctional system and cannot be dealt with in isolation purely by instructions to improve
discipline.
The conditions needed for police reform
A question that has been raised by many persons during the course of the last ten years of
the Asian Human Rights Commission's study on Sri Lankan policing is that whether a
system such, as the one existing in Sri Lanka can be reformed at all. Such concerns are
expressed by senior criminal lawyers, judges and other intellectuals including some
policemen themselves. When speaking privately most policemen admit that there is
something gravely wrong with the system and that there is no serious discourse at all about
putting this right.
All these conversations remind us of the great fall of Humpty Dumpty that not all the king's
men and all of the king's horses could not put Humpty Dumpty together again.
Therefore discussions about police reform should concentrate more on the factors that
contribute to making systems dysfunctional rather than minor aspects of reforms such as the
introduction of forensic science and the like.
The need for a change discourse on police reforms

13

The type of crisis that the Sri Lankan policing system faces is a part of a larger political and
societal crisis. The salient question is as to what type of policing the state as well as civil
society wants to have. So long as the state fears the development of an efficient policing
system as a threat to the way the state exists in the country at the moment the implicit answer
to that question is that the state has allowed the system to become dysfunctional. An efficient
policing system will threaten the exiting pattern of misrule abuse of power and corruption.
As long as the state and society cannot arrive at an agreement to eliminate these factors the
talk of police reform will remain of little practical value. The realo problmes are the isseuse
of the nature of the state and the rile that the policinggsystem has to play within such a
system.
It is respectfully submitted that mere discussion on the introduction of forensic science or the
improvement of training and the improvement of discipline of the police will contribute little
to the understanding of the magnitude of the problem or the finding of solutios.
A regional and international discourse on the dysfuncntional policng system, the causes of
such dysfucntionalism and the overall approached to deal with it will contribute more
tosolving not only the problems of policing byt also of some of the basic problems of the rule
of law and democracy. The experiment made by the Hong Kong with the Independent
Commission against Corruption in 1974 is a relevant experience in studying a more
fundemnetal type of police reform that while reforming th epolciing system also contributes
to overcome some fo the basic problems affecting the political sysem wihin a country.

1.3

Justice System as a Threat to Democracy and the Rule of Law


IN THIS ARTICLE, the justice system refers to the police, the prosecution (Attorney
Generals Department), and the judicial institutions, as separate entities and as a collective
in their interactions with each other.
That these institutions suffered a great set back due to the operation of 1972 and 1978
Constitutions is unanimously acknowledged. The latest Constitutional Amendment, 19 A, is
an attempt to address some aspects of this impasse by trying to depoliticise the
appointments, promotions, transfers, and dismissals of officers in these institutions.
However, there are many other matters that are ailing the justice system, for which the 19 A
Amendment cannot provide answers.
For example, take the most important problem of Sri Lankas justice system: extreme delays
in the delivery of services by each of these institutions. These delays result in the delivering
of negative services instead of positive ones. Thus, the system contributes to creating
injustices rather than justice.
Without resolving the problem of undue delay, no other efforts can remove the negative
impact of the justice system. However, everyone seems to consider this as a problem that is
impossible to undo. Delays will always be there, seems to the unwritten rule underlying
Sri Lankas justice system. Mere verbal statements condemning delays, often made in
response to public criticism, are purely ritualistic in nature and are not meant to be taken
seriously.
Justice System remains within the primitive colonial mode
In the outside world, ideas of policing, prosecution, and judicial interventions, particularly in
terms of criminal justice, have undergone enormous changes. The driving force of change
has been the absorption of modern science and technology into justice functions.
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A most significant change has been the manner in which evidence is gathered by the use of
science and technology. From this point of view, the Sri Lankan system still remains in the
bullock cart age.
The manner in which untrained policemen beat up suspects, day in day out, in all police
station in Sri Lanka, with the view to collect oral evidence, and the way prosecutors and
judges turn a blind eye to this obsolete and inhumane practice, is an adequate demonstration
of the primitive nature of our entire system of criminal justice.
The result is the increase in crime across society and the spread of vigilante justice. The
justice system has thus become a major cause for the demoralization of the people.
Murderers, rapists, money swindlers, and other criminals, are quite happy and grateful to the
justice system. The system is also good for the bad politicians.
The bad aspects of the system could constitute a litany. There is no need to reiterate the list,
as everyone, including officials in the three branches of justice are fully aware of them. In
fact, there is no one who says anything good about this system any more. Someone wrote
recently that this is a jack ass system.
Mr. Eran Wickramaratne, currently Deputy Minister of High Ways and Investment
Promotion, made the following observations last month during an interview with AHRC
TV:
Going to the broader issue of the average person who goes into police station, the police
then have to resolve some issues. And, historically, the police have been underfunded, and
have not been properly remunerated. Thats true of public service generally, including the
police. And the investigators are even less motivated. There is the whole issue of lack of
training, because there is a lack of investment in training, a lack of investment in
technology, in solving crimes and so forth. They would then resolve to means, which police
forces in poorly funded situations all over to world resort to: try to solve crime by
fabricating some chargearresting the people who may or may not to be connected to the
crimeand often using physical force and torture to get confessions. Now this has been
documented for a period of time in Sri Lanka as a problem. It has been documented in the
rest of the region, and this is something we need to change. While the immediate focus is on
big issues of corruption, I think that this problem needs to be sorted once and for all.
This culture of treating people using torture or even psychological torture should come to a
stop here. In a civilized society, every human being has dignity, every human being should
be treated equally irrespective of their social background, irrespective of the educational
status, irrespective their wealth, irrespective of whether they have political powers or not.
Every individual must be that equal before the law. Thats the idea. Thats the goal, the
direction that we should be travelling in. To do that, I dont think there is one method or one
solution. The law is one area, the budget and funding another major area. Earlier, I could
give it as a suggestion; now I am part of government. Therefore I will certainly keep
pressing for investment not just only for the police, but also for the judiciary process.
Now, let us consider the way forward for the Sri Lankan justice system.
Three critical steps to create a modern justice system:
1) Education and training of all stakeholders, police investigators, prosecutors, and judges
on modern scientific methods of evidence collection and provision of technologies required
for this purpose. This way, modern scientific outlook can be engraved into everyones
minds. This can be done in quite a short time, with the assistance of a few foreign experts if
15

they are thought necessary. This will reduce costs, by cutting down heavy costs spent on
unskilled labour at all levels. This can be made a permanent factor by changing legal
education in all law faculties and law colleges, as well as in police and judicial training
institutes.
2) Some legal and procedural changes to remove existing practices that are primitive and
obsolete, such as the use of torture and the reliance entirely on oral evidence.
3) Basis day to hearings in criminal trials. This way a trial can usually be completed within a
week. On some instances it may take a few days more.
In short, what is needed is to introduce the modern legal imagination and the intellect to Sri
Lanka by taking a few practical steps and allocating the necessary funds. Such an
investment will pay back a thousand fold, both in the areas of economic development and
social development, thus providing a solid base for sustainable democracy and the rule of
law. It will also remove the widespread basis day to day demoralization among populations
and instead implant pride about their functioning institutions of justice. Above all, women
will benefit; they will finally be able to move about freely and without fear.
Completion of a criminal trial within a year within reach
In countries where modern justice systems are established, completion of a criminal trial
within a year is now the rule. In Sri Lanka, when victims of crimes are strong enough not to
discontinue their participation, a trial can go on even after 14 years.
The tactic of criminals that face victims who refuse to abandon participation is to get as
many postponements as possible. Often, they do this on legal advice. When examining
reasons for postponements, we find many instances where the lawyer for the accused is
absent or is seeking a date on personal grounds. There are also references to judges being
absent.
One of the terrible consequences of a delayed trial is that several judges hear parts of the
same case, and the last one that writes the judgement hears only very little of the evidence or
nothing at all. As a result, judges make errors about factual matters. In one case, the judge
wrote that although the complainant says that the accused policemen hit him on the chin
with his pistol, there is no evidence of any such injury, when, in fact, the JMOs report
clearly mentions the injury. Sometimes retrials are ordered by the court of appeal due to
such errors by the trial judge, which means the whole process begins once again after 12 to
14 or more years.
If the few steps suggested in this article are followed, completion of a criminal trial within a
year will be a reality in Sri Lanka soon.
Advantages of completing a criminal trial into serious crimes within a year
Some of the advantages of completing a criminal trial within a year are as follows:
1) Bringing criminal justice from the arena of the absurd where it operates presently to
the area of the rational.
2) Bringing a sense of meaning and social relevance to the work of all stakeholders:
complainants, accused, police investigators, judges, and the community at large.
3) Creating the strongest deterrence against crime by providing sure and speedy punishment
a far superior deterrent in comparison to harsh punishment.
4) Ending abusive practices arising out of delay in adjudication, currently widespread.
5) Ushering radical limitations to corruption.
6) Restoring and enhancing faith in the justice process and in reason.
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7) Creating greater social stability and social mobility.

1.4
UNHCR Finds Fault with the Police, the Forensic Pathologist, The Attorney General
and the Supreme Court
A DETERMINATION issued by the United Nations Human Rights Committee on 1 April
2015, reveals extraordinary failures on the part of Sri Lankan State agencies the police, the
forensic pathologist, the Attorney General, and the Supreme Court regarding a custodial
death that took place at the Moragahahena Police Station on 26 July 2003. The following
Committee Members participated in the examination of the case in question: Yadh Ben
Achour, Lazhari Bouzid, Sarah Cleveland, Olivier de Frouville, Yuji Iwasawa, Ivana Jelic,
Duncan Muhumuza Laki, Photini Pazartis, Mauro Politi, Sir Nigel Rodley, Victor Manuel
Rodriguez-Rescia, Fabian Omar Salvioli, Dheerujlall B. Seetulsingh, Anja Seibert-Fohr,
Yuval Shany, Konstantine Vardzelashvili, and Margo Waterval.
The facts of the case are that Sunil Hemachandra (Sunil) was once a healthy and a literate
man with no criminal record. He was a daily paid labourer, mostly engaged in tapping of
rubber and climbing trees for plucking coconuts.
His misfortunes began, ironically, when he won a lottery ticket of a little over 3 million
rupees (approximately USD $25,000). Through the lottery agent, the Moragahahena police
learned about Sunil having won the lottery; the Officer-in-Charge of the Moragahahena
Police Station sent a police officer with the message that Sunil should arrive at the Station,
along with his ticket, and stay there for his own safety. Sunil did not comply this request.
Instead, he went with his mother and aunt, en-cashed his winning ticket, and immediately
deposited it in his aunts bank account. Thereafter, he bought a van for 1.2 million rupees, a
three-wheeler for one of his nieces, and gave 5,000 rupees to his nephew as a gift.
A few weeks later, a team of police officers from the Moragahahena Police Station came
looking for Sunil; they inquired from his aunt whether Sunil had spent his lottery money.
One of the police officers warned, his [Sunils] happiness would not last long. The police
officers left a message for Sunil to report to the Moragahahena Police Station.
On the same day, Sunil, accompanied by an acquaintance, Chanaka, and along with the son
of the lottery agent, Lionel, went to the police station. At the Police Station, one of the
police officers (a Sub Inspector) requested Sunil to pay money as support. Sunil had
replied that the money was not with him and declined to pay. The same police officer then
17

insisted on the payment of 25,000 Rupees to cover the expenses of a procession of the
Vidyaratne Temple in Horana, to which Sunil agreed.
On 22 July 2003, five police officers from the same police station arrived in a vehicle at
Sunils aunts house and, seeing him asleep in his room, identified him as being the one
who won the lottery and then they proceeded to beat him, which included hitting him on
his head. The police officers proceeded to arrest Sunil and Chanaka and continued beating
Sunil at the time of the arrest and during the ride in the police jeep to the police station,
when he was hit on his head and in his abdomen. Chanaka was hit in the face, several times,
when he asked the officers to stop beating Sunil.
Sunil and Chanaka were taken to the Moragahahena Police Station and placed in a small cell
with several other detainees. Next morning, Chanaka found that Sunil was visibly unwell
and was bleeding from his nose and his mouth, and was not able to stand. Chanaka alerted
the police officers of Sunils critical health condition. However, the officers merely asked
Chanaka to take Sunil to the backyard and to wipe the blood off his face. The bleeding
however, continued uninterrupted from his nose and mouth and Sunil began vomiting blood
clots. One of the police officers directed Chanaka to give Sunil an iron rod to hold, which is
done in the case of epileptic attacks.
The same morning, Sunils aunt came to the police station and found Sunil lying on the floor
of the cell bleeding from his nose and mouth. She too alerted the police about Sunils
serious condition, but was chased away by the police.
It was only later during the day that Sunil was finally taken to the Horana Base-Hospital in a
police vehicle. Sunils aunt visited him at the Police Station and was told by Sunil that he
had been brutally assaulted by the officers. She found him to be in severe pain and his face
was red and swollen.
Later, on the same day, two police officers from the same station arrived at the hospital to
record Sunils statement. But he was only able to mention his name. However, the police
officer wrote something on two lists of paper while talking to the other. The officers then
obtained two impressions of Sunils left thumb, in lieu of his signature, although Sunil was
capable of signing his name.
The next day Sunils family learned that he had been transferred to the National Hospital in
Colombo, where he had undergone brain surgery. On 26 July 2003, staff at the National
Hospital informed his aunt that Sunil passed away earlier that day.
Three days before his death, while Sunil was in hospital, Sunils aunt went to the office of
the Assistant Superintendent of Police in Horana, and attempted to complain of Sunils
arrest and torture. But her complaint was not recorded by the Superintendent of the Police. It
was only on 26 July 2003, that the Assistant Superintendent of the police in Horana recorded
a statement from the aunt and Chanaka, who was released from police custody.
Sunils aunt also made a complaint to the National Human Rights Commission (NHRC),
and with the help of a human rights organisation Janasansadaya lodged a Fundamental
Rights Petition before the Supreme Court of Sri Lanka, in which a number of officials and
institutions were cited as respondents.
The aunts complaint to the NHRC remained unanswered till August 2008, when the NHRC
stated that as a Fundamental rights case had been filed before the Supreme Court, the NHRC
will not make any inquiry while the case is pending. Since then, Sunils family has not heard
from the NHRC.

18

The Additional Magistrate of the Colombo Chief Magistrates Court opened an inquiry into
Sunil Hemachandras death and heard the statements of Sunils aunt and Chanaka. The
Additional Magistrate noted that in the police report from Moragahahena Police Station
there was no entry whatsoever, revealing the reason for which Sunil has been arrested by
the police. The Magistrate also noted after observing the victims body in the mortuary,
that among other injuries he noted an injury of about one inch slightly above the buttocks
on the left side of the back.
A few days later, a Consultant Judicial Medical Officer (JMO) from Colombo conducted a
post mortem examination. His report documented ten pre-mortal injuries, four contusions,
four aberrations, one peri-orbital haematoma (black eyes) around the left eye and one
surgical incision. However, the JMO made no record of the injury on the left side of the
back observed by the Additional Magistrate. The JMO identified the cause of Sunils death
as acute subdural haemorrhage following a head injury caused by blunt trauma. The report
identified four possible origins of fatal haemorrhage: a heavy blow on the back of the victim
with a weapon or a kick with boots; a fall due to being pushed; accidental fall; or a fit due to
alcohol withdrawal or epilepsy. Strangely, the report concluded that it was possible that the
cause of death was a fall following alcohol withdrawal, a finding seemly derived solely from
the discovery of an enlarged and fatigued liver in the body of the deceased.
On 8 August 2003, the Magistrate of Horana directed the Senior Superintendent of the
Panadura Police to investigate and produce the suspects before the court as the
circumstances surrounding the victims death seemed suspicious.
However, on 29 August 2004, the Attorney General decided that no charge could be filed in
connection with Sunil Hemachandras death as there was no evidence of any assault on the
victim. On the basis of this reference by the Attorney General, the Magistrate removed the
case from the roll.
Regarding the authors petition to the Supreme Court, which was made in September 2003,
a decision was made on 6 August 2010. The Supreme Court dismissed the application based
on the conclusion that the fall being due to a fit following alcohol withdrawal was highly
possible.
Concluding findings of the UNHRC
The UN Human Rights Committee considered Sunils case on the basis of information
placed before the Committee. It should be noted that Sri Lanka as a State party was under
obligation to reply to complaints placed by the UNHRC under the Optional Protocol to the
International Covenant on Civil and Political Rights. However, despite requests having been
made to the state party, twice, by the UNHRC, the State party made no reply to the
allegations made in this Communication.
The UNHRC arrived at the following findings:
Arbitrary deprivation of life
Regarding the authors claims under Article 6, in relation to arbitrary deprivation of Sunil
Hemachandras life, the Committee recalled its jurisprudence, in which it determined that by
arresting and detaining individuals, the State party takes the responsibility to care for their
life, and that a death of any type in custody, should be regarded as prima facie a summary
and arbitrary execution. Consequently there should be a thorough, prompt, and an impartial
investigation to confirm or rebut this presumption, especially when complaints by relatives
or other reliable reports suggest unnatural death. Members of the Moragahahena Police
Station arrested Sunil Hemachandra on 22nd July 2003 at his place of residence. Four days
19

later, on 26th July 2003, he died in the National Hospital in Colombo, as a direct result of an
acute subdural hemorrhage following a head injury cause by blunt trauma. Although the
victim was bleeding uninterruptedly, i.e. he was in a visibly critical medical condition the
day after his arrest and placement in detention (23rd July 2003), the police failed to seek
medical assistance for at least three hours.
State partys investigation into suspicious circumstances of the death of Sunil
inadequate
The Committee has recalled that criminal investigation and consequential prosecution are
necessary remedies for violations of human rights, such as those protected by Article 6 and 7
of the Covenant. In this case, the Committee has observed that all investigative steps
undertaken by the State party were carried out by members of the Moragahahena Police
Station, i.e. the same police officers which arrested and detained Sunil Hemachandra; that
the investigation ordered on 8 August 2003 by the Magistrate of Horana was closed, further
to the Attorney Generals decision of 29th April 2004 not to pursue charges for assault; that
it took the Supreme Court seven years to rule on the Fundamental Rights Petition filed by
the author; that, in its decision on 6 August 2010, the Supreme Court discarded the
possibility of the victims custodial death as a result of torture, without ordering any
independent investigation to ascertain the facts and identify possible perpetrators: no police
officer was identified as a suspect and interrogated, let alone suspended or brought to
justice. In the absence of any explanation by the State party, the Committee has concluded
that the State partys investigations into the suspicious circumstances of the death of Sunil
Hemachandra are inadequate. The Committee has concluded that the State partys
authorities, either by action or omission, were responsible for not taking adequate measures
to protect Sunil Hemachandras life, and to properly investigate his death and take
appropriate action against those found responsible, in breach of Article 6 paragraph 1, read
alone, and in conjunction with Article 2 paragraph 3 of the Covenant.
Torture and failure to provide immediate medical attention
The UNHRC has concluded that severe torture had been committed at the Moragahahena
Police Station and that the State party has also failed to provide immediate medical attention
even after the serious condition of the detainee was brought to their notice.
Illegal arrest
The UNHRC concluded that the arrest and detention of Sunil Hemachandra was also illegal
and that the State party failed also to inform the reason for his arrest.
UNHRC Recommendation to be fulfilled by the Government of Sri Lanka within 180
days
The UNHRC has recommended that Sri Lanka as a State party should undertake a prompt,
thorough, and independent investigation into the facts, ensuring that the perpetrators are
brought to justice, and ensuring reparation, including payment of adequate compensation
and public apology to the family. The State party should also take necessary measures to
ensure that such violations should not recur in the future. The State party had been requested
to provide information about measures taken to give effect to the Committees views within
180 days. The State party is also requested to publish the Committees views and to have
them translated into the official language of the State party and be widely circulated.
Will the new government act differently from the Mahinda Rajapaksa government?

20

The Mahinda Rajapaksa government completely ignored all the views and recommendations
of the UNHRC delivered during the term of its office. The question now is whether the new
government headed by President Maithripala Sirisena who has promised to discontinue
with the way the previous government conducted itself in relation to international affairs
including relationships with the United Nations will act differently with regard to the
findings and recommendations of the UNHRC in Sunil Hemachandras case.
President Maithripala Sirisena has made good governance the major slogan of his
government. The UNHRC observations and recommendation in this case expose the
extreme deficiencies relating to good governance in Sri Lanka; of particular importance are
the failures mentioned by the UNHRC regarding the failure to conduct impartial inquiries
into custodial deaths. Also of importance is the UNHRC criticism of the Attorney Generals
interventions into criminal cases in order to stop the investigations, as it happened in Sunils
case.
What is also unique in this case, is that the UNHRC has made observations regarding the
failures of the Supreme Court of Sri Lanka to call for a fresh inquiry, whereby the Court
could have intervened to defeat the police scheme to deny justice by subverting inquiries
into a custodial death.
1.5

Abysmal lawlessness and the zero status of citizens

Introduction: The distinction between genuine and counterfeit actions for justice
Leo Tolstoy once wrote that the art of his time in Europe was counterfeit. In counterfeit art,
the artist believes himself to be creating a work of art but is in fact only creating
impressions of art. These impressions are derived from an understanding of some external
qualities of art, which the artist tries to recreate. The work produced in this manner appears
to have the external characteristics of genuine art. By imitation, artwork was massproduced to suit the appetites of people willing to pay for it.
The analogy is relevant for the protection and the promotion of human rights. Do activities
really address the problems towards which they are directed? Do they really go into the
deeper qualities or are they merely restricted to the superficialities? This depends upon the
extent to which the real problems are addressed through mature use of judgment. It
depends on the extent to which the solutions are real ones, not mere imitations of other
works.
In counterfeit human rights work the actor begins on the basis of some training or some
understanding gained from observation or reading on the general nature of some problems
and assumes that there is no need to develop specific knowledge about the specific problems
that they may encounter in real life, in the particular circumstances in which they have to
work.
It is possible for someone to gain some knowledge of what other people have done to resolve
some problems without understanding the particular reasons as to why those things were done
in those other circumstances. The person might get some impressions about those activities and
then try to replicate them. Externally, the replicated activities will have some of the qualities of
the original.

21

They may have the appearance of genuine human rights efforts, but will in fact be mere
counterfeits.
In a particular country, disappearances, extrajudicial killings, torture, illegal arrest and
detention may have taken place on a large scale. Well-intentioned and highly motivated
citizens may demand that impartial and competent bodies investigate and prosecute
perpetrators. If these demands are made within a country where criminal justice institutions
genuinely exist, then there will be results sooner or later. But if these institutions do not
exist at all or are completely dysfunctional, however long demands for justice are made
nothing will happen, because there are no institutional possibilities. Even with regime
change, institutional capacity will not be automatic.
Under such circumstances, the honest citizen who engages in work with the best of
intentions can make demands for many years but not attain results. The citizen may think
that he or she has done as much as possible, on the basis of impressions gained from others
who have dealt with similar problems in other circumstances. Both in terms of attempts and
in terms of failure, the citizens honest activity remains a mere imitation.
Where institutional impediments to justice exist, it is the task of anyone who desires
justice to struggle for the creation of or improvements to its institutions. Particular
methods and strategies need to be developed with comprehensive knowledge of the local
context. Lessons learned or impressions gathered from others can be useful, but are no
substitute for knowledge of the actual circumstances.
For some years, the Asian Legal Resource Centre (ALRC) and its sister organization the
Asian Human Rights Commission (AHRC) have through article 2 and other
publications attempted to bring this point home very firmly with regards to the human
rights situation in Sri Lanka. Just a few of the major reports and other publications that it
has produced towards this end include: Sri Lanka: Disappearances and the collapse of
the police system,
From these publications and the work that it has conducted with partners in the country over
the last 15 years, the centre has concluded that what exists in Sri Lanka today is a situation of
abysmal lawlessness, resulting in the zero status of citizens. The word abysmal is here used
in its ordinary meaning to mean limitless, bottomless, immeasurably bad and wretched to the
point of despair. Lawlessness of this sort differs from simple illegality or disregard for law,
which to differing degrees can happen anywhere. Lawlessness is abysmal when law ceases to
be a reference. What would normally be crime ceases to be thought of as crime and
lawlessness becomes routine. This kind of abysmal lawlessness manifests itself in arrests,
detentions, and trials that require no legal justification.
Under these circumstances, the idea of legal remedy or redress also ceases to have any
meaning. All legal systems are built around the idea of legal redress. Laws and procedures
are meant to make redress possible, to one degree or another. Abysmal lawlessness implies a
complete loss of the linkage between redress and whatever may be called law.

The situation of abysmal lawlessness will not be changed through the victory over the
Liberation Tigers of Tamil Eelam (LTTE) that the military finally achieved this year. The
22

suppressing of violence does not in itself guarantee that human rights will be better
protected. In fact, the military victory can easily be utilized to further strengthen
authoritarianism and to suppress democracy and the rule of law even more.
With this perspective, this essay is organized according to the following themes:
1. The lost meaning of legality: how the notion of legality itself has been defeated,
accompanying the collapse of institutions for justice and leading to the zero status of
citizens to which the title alludes; the loss is associated with the suspending of criminal
procedure law through antiterrorism and emergency laws.
2. The predominance of the security apparatus: with the decades of conflict and final
victory over armed groups in the country, the security apparatus is now both the paramount
and most comprehensive agency for political and social control in Sri Lanka; it is unbound
from conventional rules that once at least delimited its sphere of activity and extent of its
authority thanks to the use of emergency and antiterrorism laws; it can act with unlimited
secrecy and without challenge, on the pretext of national security.
3. The disappearance of truth through propaganda: with the first two elements of the
state in Sri Lanka, the government propaganda machinery is no longer bound by any
rules of truth or falsehood; even the distinction between the two is completely lost.
4. The superman controller: a constitutional and political arrangement that allows a single
person to manipulate the three elements above as he or she wishes; the superman controller
was created through the political and legal vacuum of the 1978

Constitution, in which the rule of law could not survive, but has over time accumulated
even greater powers through the combination and manipulation of the three elements.
5. Destroyed public institutions: the institutions for the administration of justice are
completely destroyed through the combination of the above four elements; this is the feature
of life in Sri Lanka today on which a great deal of the earlier work of the ALRC has turned,
so as to document and demonstrate this fact and in order to arrive at the understanding of the
present situation in terms of the four elements; there is nothing sacrosanct or predetermined
about any institutional practices now, and the citizen who goes before public institutions
knows not what to expect.
6. The zero status of citizens: Sri Lankas citizenry, while believing that nothing has
significantly changed, is doomed by the four elements and the consequences of its destroyed
institutions; due to conflict on the island, at present the hundreds of thousands of persons
detained in camps outside the framework of law and without legal status are suffering the
greatest consequences of this zero status, but in fact it is a feature of the situation in the country
that is common to all citizens to one degree or another.
The material used for this article has been variously drawn and adapted from the
ALRCs and AHRCs statements and other appeals, the authors articles on online
websites, including the Sri Lanka Guardian and Ground Views, and some outside
sources, which are cited in the text.

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24

25

CHAPTER 2

- The Need for Police Reforms

2.1
A practical illustration of the actual state of the Sri Lankan policing service as
illustrated by the recent Embilipitiya incidents and the challenge to the drafters of the new
constitution on the need to address this issue; A Statement issued by the Asian Human Rights
Commission entitled the Constitution making and brutal police murder at Embilipitiya;
The Constitution making and brutal police murder at Embilipitiya
The Government has announced another attempt at constitution making in Sri Lanka which,
this time is to begin, with the hope to complete the process, by the end of this year. A
resolution to this effect has already been introduced in the Parliament and a Drafting
Committee has been named. A valid question that begets asking is; what, does a constitution
making in Sri Lanka imply?
Some reflections of the alleged brutal murder in Embilipitiya, may provide some answers to
this very important question about the purpose and direction of constitution making in Sri
Lanka.
The broad details of the incident as described in many reports, including many photographs
and videos is quite simple. A party, was being held, at a residence in the Embilipitiya town
and many people were attending this private celebration. During this party, two un-invited
guests who were two policemen - arrived at the house to the surprise of all guests and the
residents. They were there not for any particular police duty, but to ask for Arrack (a local
liquor), for their own consumption. As this request was not heeded to by the owners and
residents there began a quarrel which quickly turned aggressive. The two policemen had
beaten up several people at the house, in particular a young man, Sumith Prasanna
Jayawardana who was the owner of the house. The policemen had then called their
colleagues at the local police station as reinforcements, and soon thereafter a large group of
policemen had also arrived and they had severely beaten the people attending the party,
including women. The people who were at the event, have later spoken to the media
including London based Sinhala BBC service, and had given accounts of the cruel manner
in which they were treated by the officers attached to the Embilipitiya police. As a result of
the police beating, Sumith Prasanna Jayawardana, a young man, was killed. This naturally
provoked reaction from the people of Embilipitiya, who in large numbers began to gather
and also put up black flags in protest of the police action. They also signed a petition,
addressed to the Government to complain about this action. Meanwhile, police sought the
intervention of the Magistrate in the area, and later served the pregnant widow, of the
deceased young man with a notice ordering her to ensure that there will be no protest against
the police and in particular forbidding anyone to carry a coffin, while demonstrating. As the
tensions were building large numbers of police were called to the streets including, as
reports stated, around 500 STF personnel (Special Task Force), in order to prevent a mass
protest by the people.
This incident is the thus far the first killing to take place, due to police brutality in 2016.
Going by the experiences of the previous years, this will certainly not be the last.
A Constitution is the first law or the paramount law of a country, that lays down the rules
that the government, all its institutions and the people should abide by, if they are to achieve
the great goals that the nation has set out to achieve, such as development, prosperity, peace
and harmony and orderly behaviour in every aspect of the nations life. The simple question
that would arise is ask then, as to whether it would be possible for the new constitution, to
provide for a legal arrangement within which, the police in Sri Lanka will cease to act
brutally. Or will it be the case that even after promulgation of the new constitution, the
26

police will be allowed to act as brutally as they do now. If later be the case, then the people,
particularly the people of lower income groups in the country will inevitably question, what
good will such a constitution bring about to the people and the nation. Will this constitution
making be another failed attempt as the two previous constitution makings were?
In no country is the maintenance of law and order possible, if the law enforcement agency of
the country, the police itself, does not abide by the law. The Embilipitiya incident and many
other similar incidents, only indicate that the Sri Lankan police do not consider it their duty,
to abide by the law. A commonly held belief seems to be, that the police can break any law
and get away with it.
The Embilipitiya incident confirms this perception. Despite of a brutal murder taking place,
about which there is a large body of evidence, eye witnesses, photographs, videos and the
like, the murders have not yet been arrested. They have only been transferred.
Looking at the scale of indiscipline in the Sri Lanka police, it can be asserted without
hesitation, that the police hierarchy and even they Government fears to take action against
the police. The fear is that the police will retaliate and withdraw cooperation, which in turn
will create even more problems for the Government to tackle.
What use would any constitution be, if this situation is allowed to be continued? Thus a test
for the effectiveness of any new constitution, that promises to restore the rule of law and
good governance, is that it will develop constitutional strategies, to create a law abiding
police force. Given the conditions in Sri Lanka, this will not prove to be an easy task. To
bring about such effective reforms would require considerable discussion with the people
about what has become of their police force, quite openly and frankly. If that cannot happen,
Sri Lanka will continue to be a place of disorder, which is caused mainly by its main law
enforcement agency.
The President and the Prime Minister and even some ministers have spoken eloquently
about the making of the new constitution and how it will make Sri Lanka a prosperous
country. If they are serious about what they are talking, they should look into the state of
policing in Sri Lanka and place before the people a perspective, as to how a policing that has
turned wild, could be tamed and will become an instrument that generates an environment
where law enforcement will become a civilised practice. An uncivilised policing and a good
constitution are incompatible. One would hope that the President and the Prime Minister
will demonstrate their wisdom and capacity to deal with this difficult problem.
It was not so long ago that the National Police Commission and the Human Rights
Commission of Sri Lanka (HRCSL) forthright, condemned the police attack on the NDTA
Students. The HRCSL, also imposed fines on the culprits. However, that does not seem to
have awakened the Inspector General of Police, to take firm action to restore discipline.
Instead, the Police Headquarters have moved the Courts, to challenge the action of the
Human Rights Commission of Sri Lanka. The internal disciplinary process of the police has
broken down to these extents.
The Constitution Drafting Committee, when it starts its work therefore, should seriously
ponder on these questions. If they cannot find a way to create a law abiding police force,
their efforts towards making a new constitution will not bring any good tidings to Sri Lanka.
Drafting of a constitution, is not a matter of engaging in some paperwork. A nice
constitution can be written by anyone, who has an access the text of other good constitutions
in other countries. A really good drafting process of a constitutions involves dealing with
threats to liberty and equality that the people are faced with and deliberating solutions that
should be incorporated into the law so as to overcome these issues. Thus the drafters must
27

address the socio political situation of the country and be clear-headed about how to bring
an enlightened approach to discipline within the government and amongst the people. If
there is indiscipline in the government apparatus, the discipline among the people can be
only brought about by repression. Then, what is required is not a constitution, but draconian
national security laws. The period of rule under the last two constitutions (1972 and 1978)
was a one that was carried out through such draconian national security laws. Naturally, Sri
Lanka does not need a third one, to achieve the same purpose.
At the heart of constitution making should be the idea of people security, as against the
narrow idea of national security. It is the peoples security that is being threatened by
actions such as the one that took place in Embilipitiya. Peoples security is also being
threatened at almost every police station, every day, when the police brutally assault people
under the guise of conducting criminal investigations.
What has failed in Sri Lanka, is the law enforcement within the democratic and rule of
law framework. This failure cannot be cured by adding another paper law, even if one calls
it a constitution. There has to be an intellectual attempt to grasp the violence that is
perpetrated on the people through the very apparatus of the Government. Having understood
the causes of such violence, it is up to the Constituent Assembly to debate the ways by
which such violence could be brought to an end. The task of the Drafting Committee should
be to help bring about such a debate, so that through a genuine discussion on actual
problems, solutions can be found which could be incorporated into the new constitution.

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CHAPTER 3 - Collapse of the Criminal Justice System


3.1
How 63 to 10,000 Ratio of killings by security forces in 1971 caused the collapse of the
Sri Lankan Criminal Justice System
Inability to mourn Sri Lankan experience (1971 onwards)
In a famous book entitled Inability to Mourn, two authors, who were husband and wife,
Alexander Mitscherlich and Margarete Mitscherlich, wrote about the experience of post-war
Germany. Their patients complained of all kinds of illnesses, which the two authors traced
to a common phenomenon of the inability of the Germans to mourn for their past,
particularly as the atrocities done by the German soldiers in various warfronts were being
revealed.
A somewhat similar experience can be seen in Sri Lanka after the extraordinary measures
taken by the Sri Lankan security agencies in 1971 in order to crush what was in fact a
relatively minor rebellion led by Janatha Vimukthi Peramuna (JVP). According to the
statistics revealed by the Criminal Justice Commission, which was created to hear the case
against the JVP, the number of deaths resulting from the JVP atrocities was 63 persons, and
305 security personnel were wounded. On the other hand, many sources have given the
figure of over 10,000 deaths being caused by the security forces in retaliation. This
63:10,000 ratio demonstrates the extent of the disproportionality of the violence used.
It was this extent of violence used in crushing the 1971 JVP rebellion that changed the
contours of criminal justice in Sri Lanka. Ever since then, all counter-insurgency operations,
both in the south as well as in the north and east, had a similar pattern of enormous
disproportionality in terms of the violence that was permitted to be used.
One of the strategies that was used in crushing the JVP rebellion of 1971 was the largescale
practice of killing people after arresting them. The security forces were permitted to arrest
any person who was suspected to have any kind of connection with the JVP and, irrespective
of the nature of the connection, they could be interrogated and killed, and their bodies could
be disposed of.
A question that has not been the subject of any study so far is as to why the Sri Lankan
security forces were allowed to kill suspects after securing their arrest. The procedure
required by law when making arrests, as well as in dealing with those who had been
arrested, was quite well-observed at that time. The criminal procedure code that prevailed in
Sri Lanka at the time was based on the same principles that were adopted by the British
colonial power in India, as well as in other South Asian nations. This criminal procedure law
prescribed the rules relating to arrest, as well as investigations leading up to the filing of
indictments, and the conduct of trials, as well as the manner in which the punishments could
be meted out in courts. All such laws, rules and procedures were allowed to be ignored when
dealing with the alleged insurgents arrested in 1971.
The question that needs to be asked is as to why the government of the time and the security
authorities decided to ignore the law, which was well laid down, regarding the matters of
arrest and dealing with those who had been arrested, and instead allowed the security forces
themselves to be the investigators, prosecutors, judges, executioners and also disposers of
the bodies of such persons. Why didnt the government and the security forces follow the
normal law of the land regarding those who were arrested and comply with the procedures
29

that were laid down in the conduct of investigations, prosecutions, trials and sentencing of
prisoners?
In the absence of any explanation by the government at the time of these changes, the only
possibility is to speculate on what may have been the reasonings of the government in
allowing the security forces to act in the manner prescribed above. The simple explanation
seems to be that the government did not think that the mere securing of the arrest of
insurgents was an adequate counter-insurgency measure. The government seems to have
acted on the basis that highly visible and immediate actions that communicate the
governments decision to kill anyone connected with the insurgency was a necessary
measure for crushing the insurgency.
We may speculate as to what might have happened if the government kept arrested persons
in detention and let the law take its own course about what punishment should be meted out
against them. This would have put the security forces in a situation where they could only
arrest those against whom there was adequate evidence to demonstrate any connection with
the insurgency. It may have been the governments view that doing that would have retarded
the ability of the security forces to quickly retaliate in an effective manner to crush the
insurgency. It may have been argued that such a process of arresting persons only where
there were reasonable grounds for arrest would require considerable resources on the part of
the government when dealing with a situation of mass arrests, as it was assumed that a very
large group of insurgents were involved in an attempt to overthrow the government.
When comparing this situation with the attempted coup of 1962, when some leading
members of the security forces, such as the army, navy and police, planned a coup to
overthrow the government of Sirimao Bandaranayake, we see that all the suspected leaders
of the coup were arrested and thereafter they were detained in special premises, where there
were better facilities than in the normal prisons, and then they were brought before the
courts. The courts dealt with them within the normal process of law. A trial was conducted
and they were found guilty, and they were also given opportunity to appeal to the Privy
Council in the United Kingdom, which acquitted them on a technical ground, on the basis
that they were tried under retrospective law.
If the arrestees in the 1971 insurgency were given the same chances to utilize the law of the
land and have the recourse to court for their defence, would it have made a difference to the
counter-insurgency measures that needed to be taken to crush a rebellion? Safeguarding the
rights of the arrested persons did not deprive the government of the right to kill persons in
combat, as for example there were some instances in which there were attacks on some
police stations, and those were dealt with by direct confrontation by the security forces.
What then were the disadvantages that could have been thought of as insurmountable
difficulties in crushing an insurgency that would have been caused by dealing with those
who have been arrested under the normal process of law?
Perhaps a strategic reason may have been that if a large number of persons were being
arrested throughout the country, and they were being kept alive, there may have been
interventions by their relatives and others, who may have sought the interventions of courts
to safeguard their loved ones, and this may have been thought of as a complication that the
security forces would have found difficult to cope with. It may also be that that strategists
for the government may have thought that, had such large numbers of persons been kept in
prisons, this could have generated support from the public for the insurgency. One measure
for crushing such public support would be to dispose of the arrested suspects as quickly as
possible by way of quick killings.
Perhaps, if we are to speculate more, it may also have been that the government felt that
adequate prison facilities did not exist for keeping large numbers of persons within the
30

prison premises in Sri Lanka. They would have thought that this could cause an explosion in
the number of prisoners and that that may have disrupted the maintenance of the rest of the
prison population. Given the fact that the Sri Lankan prisons have always been overcrowded
and that there was no space for more prisoners , it could have been thought that it was more
convenient to dispose of all the alleged insurgents rather than maintaining a big prison
population.
It also appears that the strategists who were working on the government counter-insurgency
plan did not have adequate information about the actual capacities of the JVP and the extent
of the actual threat it posed. While attending a meeting after his retirement, quite a long time
after the 1971 events, one of the senior police officers involved in the counter-insurgency
remarked that in fact they really panicked on hearing of some incidents caused by the
insurgents. The lack of adequate information and intelligence about the real proportions of
the problem may be attributed to the poor state of the intelligence services at the time. This
was the first insurgency faced by the post-independent Sri Lanka and the actual strength of
all the security forces at the time, including those of the intelligence services, were rather
weak.
The JVP threat was portrayed as an imminent threat of a communist takeover. This still
being Cold War times, such a threat attracted the foreign powers, and this would have also
played a role in determining the manner in which the government organized its counterinsurgency. The fact that assistance was requested from India, Pakistan and other
neighboring countries, and even from the United States, is well known. In fact, in places like
the Bandaranayake airport, some foreign forces were deployed.
In Sri Lanka, all the major religions, particularly the Buddhists and the Christians, have
treated the issue of a possible communist takeover threat as a threat to their religions. This
was partly a reaction to Marxist parties, that is the Lanka Samasamaja Party and the
Communist Party, which had, for several decades, played a major political role in the
country. The threat of these parties becoming more powerful, even establishing a
government through elections, had been the subject of serious propaganda attacks. Thus, in
the popular imagination, the idea of a communist takeover of power had been nurtured for
several decades. It may well have been that the JVP threat was taken as the fulfillment of
this expectation, and therefore a massive effort had to be taken to crush the imagined
revolution.
Insurgencies and counter-insurgencies give rise to massive propaganda campaigns. This is
perhaps psychological warfare within a civil war context. The governments immediate
reaction to the JVP threat was to unleash a massive propaganda attack against what the
government termed terrorism. In fact, this was the first time that propaganda against
terrorism was brought with such force within the country. This propaganda itself would have
played a role in determining the nature of retaliation against those suspected of being
participants, or even sympathisers, of terrorism. This may also have given the excuse to not
treat them as ordinary criminals, who were usually dealt with within the overall framework
of criminal justice in Sri Lanka. But as the threat was one of terrorism, such suspects would
have been treated as belonging to a special class, and this may have also led to their special
treatment outside the framework of the criminal law.
A further factor could have been the influences of various international schools of thought
about counter-insurgencies, and these would naturally have influenced the officers of the
higher ranks of the establishment in particular, who would have been trained in those ideas.
For these officers, they had learned lessons from those schools of thought about the
measures that should be adopted in dealing with insurgencies. All these anti-terrorism
schools advocated that harsh measures should be adopted when faced with such situations,

31

and the idea of meeting terror with terror was also quite a popular slogan, even repeated
during the time by some of the prominent politicians.
In counter-insurgencies, the target is often not merely the insurgents, but also the general
population of the country. The aim of the counter-insurgency is to prevent any kind of
popular support for the insurgents. The way this is achieved is often by terrorizing the
population. There is no better method of terrorizing than to exhibit dead bodies on the roads,
canals and other public places. Thus the persons who have been arrested on suspicion of
connections to the JVP would have been treated as useful materials for the such exhibitions.
In fact, after certain JVP attacks on security personnel, there were immediate counter-attacks
and many persons alleged to be JVP members were killed and their bodies were exhibited
on the roads. Besides the bodies, there were also charred remains after persons were burned
with flaming tires around their necks and other methods.
Thus, dealing with the arrested persons during the time was a more complicated matter than
dealing with criminals under the law of the land. In a sense, insurgencies and counterinsurgencies generate a kind of public theatre, where dead bodies become dramatized
objects for achieving the ends of such insurgencies and counter insurgencies.
Thus, when we look into the 63:10,000 ratio and see the disproportionate response of the
government against the JVP, we see something which is far bigger than the issue of dealing
with a crime. The whole episodes of arrests, interrogations, killings and disposal of bodies,
become the language of the politics of a counter-insurgency. In the heat created by the
imaginary battle, reason plays a very small role. A new kind of logic emerges in which onetime neighbors, friends, fellow citizens, begin to think of each other or are made to think
of each other as enemies. People become imaginary warriors of a war that is in fact being
created by clever strategists.
This short reflection on the 1971 counter-insurgency shows the difficulties involved in
mourning about the tragedies that took place within a community. It becomes difficult to
probe into what actually happened. Long years of discourse on the subject have been on
imaginary terms. For example, if one were to probe into the 63:10,000 ratio of killings by
the JVP and the counter-insurgency against the JVP, which exposes the myths about the
insurgency and the extent of the actual capacities of the parties involved, one would have
to contradict the way things have been imagined and the way the discourse has been
conducted for a long time.
Deconstructing the romanticized versions of the insurgency and looking into actual facts
exposes the folly that everyone has been caught up in. It is difficult for people who have
been made to think of themselves as warriors to realize that they have all been fooled. To
come to terms with the fact that the people who were arrested should have been treated as
any other suspects of crime, and should have been dealt with within the normal framework
of law, goes against the way individuals and society have been thinking about these things
for a long time. To come to an understanding that in fact the killing of a person whose arrest
has been secured is a horrendous crime, and that this horrendous crime has been done within
ones own society many times, will naturally be a disturbing experience.
Truth in this kind of situation becomes a disturbing experience. The unwillingness to go
through such disturbing experiences, and the desire to hold onto views that one has been
made to think of as the correct version of things, is the problem of the inability to mourn.
Mourning, even in normal circumstances, like in the case of the death of a loved one, is a
disturbing experience. The disturbance consists of having to come to terms with a loss. The
processes of grieving are the means by which people, individually and collectively, come to
terms with such losses.

32

But in a political experience, such as the cruelties that people commit on each other under
the pretext of various conflicts, this sense of loss comes also with a sense of guilt. One is
somehow involved in the very process by which one lost something precious from his or her
society.
In conflicts, people who become partisan to one view or another begin to think of
themselves as pure. They begin to think themselves as the selfless warrior who is fighting
against those who are bringing their society to ruin. It is this sense of being pure that gets
challenged when one begins to examine what has really happened and that one begins to
realize the collective responsibility for the damage that has happened to ones own society.
Collective guilt is a hard thing to swallow. That is the problem involved in the inability to
mourn. However, so long as this process is being faced collectively, the imaginary
grievances, imaginary heroisms and imaginary villany of others are the stuff people are
forced to think about.

3.2

Legal Systems Exposed toAdverse Circumstances BecomeEndangered and Extinct


Everything is related to everything else, is regarded as the first law of ecology by
environmentalist Barry Commoner. A legal system of a nation is connected to multitude
of factors in a society. This connection could be straight or circuitous. Social, political
and legal institutions and practices of a society are linked, capable of influencing each
other. There, a single action can have multidimensional consequences, beneficial or
detrimental.
The hypothesis of this article is that when a legal system is exposed to extremely adverse
conditions and such conditions continue to last for a considerable period, the very existence
of such systems may be endangered. Unless extraordinary measures are taken to reverse the
process, it may become extinct.
The premise of this paper is that natural resources and societal developments achieved in
earlier times can be wiped out by the adverse actions of human beings in the course of
history. Nature illustrates this principle. It is an accepted fact now that global warming is the
price we pay for indiscriminate exploitation of nature and inconsiderate technological
development. Global warming is predicted to cause colossal natural disasters. The recession
of the Dead Sea has been the subject of concern and much is talked today about the death of
the Dead Sea. It is said that the premier cause of the recession of Dead Sea is the diversion
of rivers by neighbouring countries for development purposes, reducing the amount of water
that used to flow into it.
Another such resource considered lost is the Aral Sea which is located between the
Uzbekistan and Kazakhstan. Following the Russian revolution, attempts were made to
increase cotton production for export purposes and to this end irrigation channels were
created, which diverted water flowing to this land locked sea. The results were the drying up
of the sea and the spread of pollution which was the result of the chemicals used for
production. It flowed into the rivers and were deposited on the river beds. When the rivers
dried up these chemicals were carried by the winds to far away places, causing damage to
agriculture and other environmental problems.
Similar catastrophes are replicated in societies. In this essay is concentrated on the dangers
caused to legal systems by adverse actions taken by various governments at different times.
Such adverse actions could be arbitrary changes of constitutions, suspension of civil liberties
through various emergencies and anti terrorism laws, state sponsored violence by way of
disappearances, extrajudicial killings, torture, sending prisoners to exile, prolonged civil wars

33

and the like. The dangers, such actions pose to the entire legal system and particularly the
impact on criminal justice system, is examined here.
Replacement of a constitution is the most adopted method to displace a legal system. The
new
Constitution would be designed such as to free the vested interests from the entrenchments,
checks and balances of the earlier constitution. More often than not, it is experienced that a
ruler who came into power by election would purge the powers and privileges of parliament,
the judiciary and other democratic institutions to restrain their legitimate powers and
actions. The case of a military dictator or an authoritarian ruler goes without saying. Such
actions let the executive directed by a person or a few, rise above other institutions and be
"free". Here the other organs of the government become dormant, non existent or tools in
the hands of the ruler/executive.
The perils of the continuance of such a situation for a long time are the diminishing
knowledge about the working of democratic institutions and constitutional government by
the people. They will be forced to forget about the avenues of judiciary and
parliament as recourse of legal redress. For the people, non effective institutions will not be
a choice of legal remedy, and the resultant non use of these avenues will make them vanish
slowly, creating a vicious circle difficult to break.
Displacement of constitutional law also affects public law. The citizen's right to challenge
government actions can be restrained by various types of immunities that the executive
arrogates to himself. Complete or partial removal of judicial review is one of the strategies
used to prevail over democratic norms. Constitutional changes can also bring in restraints
on the operation of writ jurisdiction of courts. The constitutional provisions may remove
the power of the courts to intervene in matters in which the courts were otherwise able to
intervene. Such actions will also diminish the peoples' faith in the judiciary that should be
able to restrain the abuse of power by the executive. Absolute power reformulates the
constitution to liberate the executive and set it to a course where it can be its own master.
Such a situation redefines abuse of power, making whatever it does, legitimate.
Politically speaking, it is an extremely ridiculous situation, when one group or another in a
country, for example, a military group, declares that the constitution has been suspended. Such
declaration is of severe magnitude. The Constitution is the basis of laws and the legal system
and is the supreme law of the land. When the paramount law of the country is suspended, the
entire law of the country will be overhanging. It is the military rule or dictatorship that
prevails. When the entire legal system is suspended the impending question is the basis of
authority of the military or dictatorship to rule and from where their power emanates. The
answer is obvious; it is sheer muscle and gun power. On such takeovers, much propaganda
will be carried out to give the appearanceand necessary coup. However, the real impact of
such a situation is that the people are brought under the naked power of the gun and the
unrestrained power of individuals who can decide and do whatever they wish.
What would be the impact of this on the population that is watching this exercise? What
value will they attach to a constitution whether it is the displaced constitution or the one
that may be enacted in the future? The very idea of a paramount law that stands above
everyone is lost, and when this situation continues, it can be gone for a very long time.
34

Such loss affects the sense of law in the affected population as well as in the future
generations.
Suspension of a constitution may be in part also; even then it produces similar effect of
complete suspension. Suspension or repeal of the constitution may be affected for bringing
in emergency laws or anti terrorism laws. In essence, special emergency or anti terrorism
laws mean, removal of the restraints available within the ordinary laws against arrests,
detention and fair trial. The elimination of such restraints paves way to torture, extrajudicial
killings and forced disappearances. Often, such emergency or anti terrorism laws also do
away with the judicial intervention into inquiries of suspicious deaths. The power of burial
without reference to the judiciary virtually makes it possible to carry out extrajudicial
killings and to dispose of bodies without leaving any trace for future criminal investigations.
Such emergency and anti terrorism laws can also make habeas corpus applications futile.
Thus, all basic aspects of criminal justice within a democratic and a rule of law system can
be taken away with just a few clauses of emergency regulations and the absence of
constitutional protection.
The implication of such special laws would be an overarching executive that controls the
everyday life of the citizens. The judiciary will be made ineffective wiping away the
defenses available against such executive and all that could be expected will be its mercy.
Rights will have to be forgotten as there is no avenue to claim them. In such state of affairs
people will be slipped into a mindset of ill faith in judiciary and the value of judicial officers
will diminish.
The role of the judiciary will be marginal and people will begin to perceive the officers of
judiciary and offices there under as unimportant and powerless as they are incapable of
carrying out the legal functions expected of them in a system of democracy and rule of law.
Where the government, elected or otherwise, brings substantive limitations on personal
freedoms and laws of arrest, detention and fair trial by way of draconian special laws, the
section of criminal investigation wing within the criminal justice system suffers the most. In
a system operating under democracy and rule of law, it is the criminal investigation branch
that does the most primary function which activates the other sections of the criminal justice
system. It is the investigating branch that investigates crimes including abuse of human
rights and who has the task of uncovering what had actually taken place. It is this
investigating branch that gathers the factual information, which is the base material on
which all the evidence is built. Without the initial work of the investigating branch neither
the prosecutors nor the judiciary can effectively function. It is also not possible for the
government and the public to form proper opinions of what has taken place when criminal
investigations do not take place appropriately. When either a military group occupies power
or the military gains more power under the emergency rules and anti terrorism laws, there
develop conflicts between civilian policing systems and the military system in the country.
When the two works parallel, the outcome would be restrictions over the civilian police as the
military assumes more power. There develops all sorts of undercurrents in which die military
exercises its dominance over the civilian police. Under these circumstances there is often the
complaint that the habits of civilian policing are being lost and that the police become
militarized to some extent.
The influence and control of the military over civilian policing is even worse when
allegations of abuse of power and the commission of gross abuse of human rights are
leveled against the military or those who are working in collaboration with the military. The
civilian police will be asked to investigate such military abuses. The civilian police under
these circumstances is crippled without legal powers to carry out effective investigations
into such abuses. Daring investigators are likely to face serious threats to their lives and
liberty, as experience witness. The same state which authorizes the abuse of power by the
military cannot provide the protection needed for investigators to probe into crimes. Under
such circumstances civilian police undergo a sudden transformation in which it begins to
35

restrain itself in order not to interfere into areas which are in conflict with the military
powers. Again under these circumstances the criminal investigating capacity of the civilian
police suffers immensely.
Criminal investigations involve many faculties and constant training and updating of
techniques. Practices of criminal investigation are sometimes formed through years of
training and hard work. For adopting the strategies and methods developed worldwide,
training and educational programmes have to be convened. Usually the police force being a
cadre organization, learn and develop habits from their seniors either being prompted or
imbibing them. It is through the continuity of practice that durable habits of investigation
become entrenched within the investigating branch of the state. Police investigation has to
keep the delicate balance between bringing culprits to books and to respect the rights of the
persons involved in the process. This difficult equilibrium is reached only by an orientation
towards respect for rights and constant development of skills. It is here die direction and
supervision of die superior officers becomes significant. The relationship between superiors
and subordinates are kept up through various forms of report writing, analysis and
assessments. Both the superior offices and the subordinates have to learn many practices
which ensure discipline in order to make a system of supervision effective.
The intermission or relegation of power of the civilian police by the government and
suspension of laws in favour of special laws makes discontinuity in the investigation system.
The skills they learned will be lost and constant up gradation would be non existent. Over a
certain period of time when the rules of responsibility for dealing with all crimes is
removed, when only selected investigations are allowed, and even worse when die
investigations are carried out not to discover the facts but to cover up situations, a criminal
investigation branch goes through a metamorphosis. Once such a transformation takes place,
it is not possible instantly to bring it back to a normal situation even through the
introduction of a new democratic constitution or the removal of emergency and anti
terrorism laws. It will take a long period to reestablish professional approach and attitude in
criminal investigations.
The conclusion of the above discussion is very clear. Whatever might be built over a long
period of time to establish the authority of courts, the capacity of criminal investigators and
the functioning of a justice system, it can be lost by adverse actions as mentioned above
and if such actions are continuing for a long period, the whole system may become extinct.
The names and titles, such as judges, criminal investigators, prosecutors and the like may
remain the same. However, the substance of their power and capacity is so transformed that
the system which they represented will exist no more. When that takes place these names
and title holders themselves are aware of their diminished status. Worse is that the entire
population also realise the title holder's devalued standing Internally, the mentalities of the
bureaucracy as well as the people go through a transmutation. Only the facade of justice
remains.
When the justice system goes through such a fundamental transformation it affects all areas
of life including the functioning of vital institution such as parliament. One of the most
common myths in recent times is that having a parliament would establish democracy by
itself. However, when parliaments cannot rely on the support of a viable justice system, or
have power to sustain one, as needed within a system of democracy and rule of law, the
institution parliament itself becomes ineffective and often befall as a mockery. One may
witness today many authoritarian systems, which while maintaining parliaments, do not
attribute any real power to them. When a strong justice system does not support the
parliament in protecting it from the control of the executive there is very little that a
parliament can do to protect itself. This is because in a democracy these institutions are
complimentary. Thus, despite of the existence of parliaments a group of persons gathered as
military leaders or even civilian leaders can effectively take all the control and all effective
powers of ruling.

36

Within those circumstances a justice system would be challenged weakened and extinct
altogether.
3.3

Sri Lanka: A murder tolerating nation


What we are facing in Sri Lanka today can be described without any exaggeration as a very
crazy situation. There is hardly anything rational that an average Sri Lankan can expect from
his society.
The saddest aspect of this craziness is the level of fear spread throughout the society.
Nobody wishes to do what would normally be called the right thing or the better thing
because of the repercussions that can be expected.
For this reason, a doctor who sees the gross neglect surrounding his patients, such as the lack of
medicine or basic facilities, will find it difficult to speak openly about these things. He may
discuss them privately, but he will make no visible protest to change things.
It is the same with people in any other official positions. An average policeman may see the
utter cruelty suffered by people without any justification, but he will not interfere to do the
right thing or to make a complaint. The expectation of a chain of irrational reactions which
they cannot turn back makes people withdraw and bear in silence things they would not
normally tolerate.
It is common for ordinary Sri Lankans to fear threats to their lives, which is why they take
extraordinary precautions to remain safe. This is most visible in the case of parents who no
longer trust societys normal protection for the young. People fear awful actions, generating
further social distrust.
The most elementary guarantee any society should provide is the guarantee against murder; Sri
Lankan society however, has failed to ensure this guarantee for its citizens. People from all
walks of life, engaged in various activities feel they are exposing themselves to the threat of
murder. Self preservation is within the very essence of the human species, and to constantly fear
the threat of murder is a grave predicament.

Under normal circumstances, it is only those engaged in murder or other criminal activities
who live in fear of their lives. In Sri Lanka however, the average citizen lives today with the
same fear as ordinary criminals; that a law abiding citizen lives with the same fear as a law
breaker is the clearest sign of the craziness existing within Sri Lankan society.
The first executive president of Sri Lanka, JR Jayewardene (1978-1989), publically announced
that the time has come for each person to look after his own security. Coming from the head of
state, such a statement is a glaring abdication of power and responsibility. That the government is
doing all it can to protect its citizens basic right to life is one of the most elementary guarantees
holding a society together. When the president says there is no such guarantee in Sri Lanka, this
is a betrayal of the very idea of governance.
Subsequent Sri Lankan heads of state have done little to reverse the statement made by
president Jayewardene. While national security is constantly talked about, the government
shows no concern for the security of ordinary citizens. In fact, according to the prevalent
37

discourse, the security of any individual can be sacrificed for the abstract notion known as
national security. The absolute powers given to the security apparatus to deal arbitrarily with
citizens lives is what in essence national security has come to mean. In recent decades Sri
Lanka has witnessed the abuse of the national security doctrine so that it can be used for the
survival of politicians at the expense of the nation.
The various rebel movements have also played a role in creating the present mentality of
insecurity. When the very system of governance goes crazy, the rebel created within that system
becomes equally crazy. The rebel movements in Sri Lankas recent history were not committed
to better and more secure transformations of society. Instead, the rebels were marked by their
anarchic tendencies and showed a similar lack of concern for the value of human life as the state
itself. Murder is thus committed in Sri Lanka by both the state as well as the rebels.

There is a clear connection between the insecurities existing in Sri Lanka and the loss of the
guarantee of the security of life. How Sri Lankans came to treat murder as a matter of no great
importance needs to be considered carefully.
The decision to kill rather than to detain
A significant issue in discussing the prevalent tolerance towards murder in Sri Lanka today, is
the way the law enforcement agencies were used to engage in committing large-scale
disappearances. From 1986 to around 1991, the official figure of around 30, 000 persons
disappeared, and, according to official records, most of these disappearances occurred after law
enforcement officers secured the arrest of these persons. Disappearances have continued after
that period up until the middle of 2009, particularly in the north and the east, and there are
already records of a large number of such disappearances in the files of the Human Rights
Commission of Sri Lanka as well as other commissions appointed to inquire into this matter
from time to time.
Killing after arrest
Disappearances in Sri Lanka were incidents of direct murder. The law enforcement authorities
began to consider causing such disappearances legitimate and necessary. How did this come
about? If the state had wanted to keep these persons alive and punish them for any crimes, it
was possible to do so either through special laws such as prevention of terrorism or through the
countrys normal laws. However, the state chose not to use the procedure of arrest and
detention, but instead sanctioned a system of extrajudicial execution and disposal of bodies.
The question as to why the state would have chosen this path is related to many issues of
criminal justice in Sri Lanka.

38

CHAPTER 4 - Status of legality displaced by 1972 and 1978


Constitutions
4.1

The displacement of the criminal justice process and its subsequent collapse
A basic criminal justice principle, that it is the obligation of the state to investigate all
credible allegations of crime, is no longer a principle adhered to in Sri Lanka. The accepted
notion that an offense is an offense against the state is no longer respected. Crimes are
treated as private disputes.
In all stages of what should be a functional criminal justice process, an approach advocating
settlements of criminal disputes is followed. At the preliminary stage of recording a
complaint at a police station, police officers routinely decline to record complaints against
state agents and politicians. This applies even in instances of grievous human rights
violations, such as torture, enforced disappearances and extra-judicial executions. This is
followed through to the the second stage of the criminal justice process, namely, the
prosecutorial stage, in which officers of the Attorney Generals Department decide on
whether to indict or not based on political realities rather than legal standards. In the period
under consideration by the Committee, indictments filed by the Department have amply
demonstrated this pattern. One such case was the indictment filed against the journalist J S
Tissanayagam under the PTA. He was later convicted and sentenced. A Presidential pardon
was granted to him thereafter. As this Submission observes above, the use of the power of
pardon by the President is manifested as yet another way in which the law is being
circumvented. The pattern is that indictments are issued unjustifiably, decisions are given
thereafter by compromised judicial officers, and then, to offset public pressure, a
Presidential pardon is granted. The meaning of the law is lost in the process.
Though the State Party has claimed the existence of a special unit within the Attorney
Generals Department to prosecute cases of torture, in reality there is no such special unit.
39

State counsel is assigned torture cases on a random and ad hoc basis. There is no state will
to effectively prosecute in these cases. This is the same with enforced disappearances and
other gross human rights abuses.
Indictments are not issued by the Attorney Generals Department despite credible
allegations about the involvement of state agents in crimes such as torture and
disappearances. This is done, despite the fact that under the CAT Act (No. 22 of 1994),
torture is recognized as a crime punishable with 7 years rigorous imprisonment. From the
year 2010, the practice of conducting inquiries and prosecutions under the above mentioned
law has been abandoned - except in extremely rare instances. However, torture and ill
treatment take place routinely across the country. The number of convictions under the
CAT Act is minimal. Contrary to the State Partys position that this is due to the adversarial
process followed in the courts, the reason for this dismal record is the absence of State will
to prosecute. In no case has an officer in charge of a police station been indicted for
complicity in acts of torture, even though the High Court, before which indictments are filed
under the CAT Act, has castigated the Attorney General for this failure and despite relevant
provisions of the CAT Act allow for such an interpretation. A lack of capacity and
independence has resulted in increased possibilities for judicial corruption. As pointed out
by the Human Rights Committee, delay in trial processes is a manifestation of the failure of
the criminal trial system in Sri Lanka. One of the factors that contribute to the delay is the
virtual abandonment of the practice of holding criminal trials continuously from start to end.
Instead, postponements are allowed for months, which drag a case for years, often five years
or more. In many cases, the trial judge who sits on the case at the start is transferred before
the end of the case. As a result, five or six judges may hear parts of the same case and the
judge who finally writes the judgment may not have heard most of the evidence in the case.
There have been instances in which the judge who wrote the judgment had not heard even a
part of the evidence.
The habit of giving suspended sentences even in cases where the accused is charged with
serious crimes, including murder, has become a common and a widespread practice, thus
fundamentally obviating the efficacy of the legal remedy available.
Reprisals against witnesses and complainants are widespread, and in some instances, the
witness or the complainant is killed so as to prevent them from giving evidence in court. The
absence of an effective witness protection law is a major reason for such reprisals. The draft
witness protection law advanced by the Government has no practical meaning because it is
premised on protection by state agencies in a context where the state itself is incapable of
providing protection due to the deep politicization of state agencies, particularly the police.
There are heavy delays in the appeal process and cases that do not reach the final stage even
after 12 years are not rare.
Even after the Supreme Court confirmed the decision to hold a fresh trial nearly 12 years
after the original date of the incident, the decision of the Supreme Court has not yet been
communicated to the trial Court which is to hold the fresh trial, even after several months.

40

CHAPTER 5
The adverse impact of delays in the judicial process and how it
has adversely affected all the basic principles on which a credible
system of criminal justice is based;
5.1

Delays in adjudication as a manifestation of learned helplessness


A young man, 18 years old, filed a communication with the United Nations Human Rights
Committee (UNHRC) on 28 January 2003, about an incident that took place on 18 April
2002. The UNHRC came to a finding on 14th July 2006. The UNHRC found that the Sri
Lankan Government has violated the rights of the man by its failure to adjudicate the case
without undue delay. The man is over 30 years old today. Sri Lanka has witnessed 4
governments since 2002. However, his case is still pending before the Sri Lankan courts.
In his communication to the UNHRC, the young man recorded the following, in order to
illustrate how delays take place.
13.10.04
02.02.05
26.05.05
12.07.05
23.08.05
28.11.05
04.05.06

- Case called for trial but no evidence taken.


- A trial date but no evidence is heard.
- The evidence of the author commences: evidence taken
for about 45-50 minutes.
- The author's examination in chief continues: evidence
taken for about 25 minutes.
- The author's cross-examination begins: evidence
recorded for about 45 minutes.
- The case is called and postponed without recording any
evidence.
- The next scheduled date.

41

Between 2004 and 2006 the case had been called eight times and hardly any progress had
been made towards completion. If the dates on which the case has been postponed since then
were also to be listed out, it would be a long and ludicrous list indeed.
What is appalling about this kind of postponement is the trivial manner in which serious
criminal trials are being treated in Sri Lanka in recent decades, ever since the practice of
hearing a case from the start to the end on consecutive dates came to an end with the
abandonment of jury trials.
The general excuse for the delays is that the courts have a heavy workload.
The UNHRC, however, rejected this excuse stating that
... Under article 2, paragraph 3, [of the International Covenant on Civil and Political
Rights] the State party has an obligation to ensure that remedies are effective. Expedition
and effectiveness are particularly important in the adjudication of cases involving torture.
The general information provided by the State party on the workload of the domestic courts
would appear to indicate that the High Court proceedings and, thus, the author's Supreme
Court fundamental rights case will not be determined for some time. The Committee
considers that the State party may not avoid its responsibilities under the Covenant with the
argument that the domestic courts are dealing with the matter, when it is clear that the
remedies relied upon by the State party have been prolonged and would appear to be
ineffective. For these reasons, the Committee finds that the State party has violated article 2,
paragraph 3, in connection with 7 of the Covenant....
A close examination of any of the cases pending for long periods of time in the courts would
expose the argument that postponements are done due to heavy workload as not well
founded.
Generally, the grounds on which postponements are made can be listed as follows:
Lawyers ask for postponements on personal grounds and courts allow these
applications;
Many cases are fixed for trial on the same day and all such cases cannot be heard on
that day;
The judge is absent for one reason or the other;
Administrative reasons, such as unavailability of stenographers or other technical
problems.
These grounds do not arise out of a heavy workload. Rather, all these are management
issues. If properly managed, most such postponements can be avoided. However, there have
been no initiatives to train judges and other court staff on management skills and there is no
enthusiasm for introduction of more efficient modes of management. For example, in many
other jurisdictions, the modes of recording of evidence have changed radically due to the
advancement of communication technologies.
A pilot project for digital recording of proceedings was experimented with in the
Commercial High Court of Colombo and in eight other District Courts in Colombo and
Kandy in 2007. However, this project was abandoned thereafter.
If proper technical arrangements are made for making court records through digital
recordings, dramatic changes can ensue, reducing the time taken for adjudication of cases.
The technologies needed for such work is fairly inexpensive. However, the deciding aspect
for introducing such changes is the willingness of judges and court staff to properly manage

42

such a system. It is the will and the skills that are missing and they have nothing to do with
extra expenses.
In many functioning judicial systems, the time now taken for hearing and disposing most
criminal trials is about one year. In less serious trials, relating to less serious offences, the
time taken is even shorter. The habit of granting dates to suit the convenience of lawyers is
now an obsolete habit in many such jurisdictions. It is even considered an unethical practice,
to seek postponements on that basis. In any case, the judges do not accede to such requests.
The appalling nature of delays in adjudication has done more damage to the Sri Lankan
legal system than any other single factor. Going through such a process goes against the
common sense of everyone, be it litigants, lawyers, judges, or the wider public. The result is
a psychological rejection of the entire system, which runs rather deep in the psyche.
However, due to sheer absence of initiative seeking to change such practices that are
abhorrent to the people, delays continue to persist.
Delays in adjudication, as they exist in Sri Lanka today, and good governance are
incompatible. Delays in adjudication are, in fact, a manifestation of the absence of good
governance. Therefore, President Maithripala Sirisenas government, and, particularly, its
Ministry of Justice, should take steps to address this problem within a short period.
As in the case of investigation into financial crimes, where the incumbent government has
sought the assistance of experts from other jurisdictions, the issue of dealing with delays in
the legal process is also one where such experts can help. Such experts can simply be asked
how such delays were eliminated in their jurisdictions. Incorporating these solutions will
alone be sufficient to help Sri Lanka overcome the societal crisis caused by undue delays.
A list of dates and postponements of virtually any of the thousands of cases proceeding at a
snails pace through the system would demonstrate the comic and trivial reasons for most
postponements. This tragicomic situation can be easily done away with. The benefits of such
an overhaul would go far beyond what one can describe. One has to only observe how a
proper functioning system of adjudication contributes to the elimination of crime and the
creation of social harmony to begin comprehending how sorely Sri Lanka needs this change.

CHAPTER6
The loss of credibility of the Attorney Generals Department due
to adjustments to the executive presidential system;
6.1

The Attorney General plays a negative role:


A further defect of the Fundamental Rights jurisdiction is that, in recent times, even before
notice is issued to respondents, the Attorney General is notified and he comes before the
court to object to notice being given on these applications. In other words, the Attorney
General objects to the filing of Fundamental Rights writs on behalf of the police officers or
other state agents before the case has been commenced and any evidence has been heard. As
the objection taken by the Attorney General at this stage is based on the instructions
received from the respondents, there is no evidential basis for the Attorney General to
appear at this stage. The Constitution provides that the court can issue notice if they are
satisfied that there are grounds for a prima facie case. This new practice of hearing the

43

Attorney General before issuing notice to the respondents acts in favor of the respondents
and is quite open to abuse.
Evidence by way of affidavits alone is adverse to the victim: An even further defect in the
fundamental rights jurisdiction is that the entirety of the proceedings depends on affidavits,
and no investigating unit makes a credible inquiry into torture and submits a report to the
court. When the Supreme Court receives a complaint of torture by way of a fundamental
rights application, it can refer the matter to a Special Investigation Unit (SIU) of the
Criminal Investigation Division (CID) through the Inspector General of Police, who is
always an official respondent. If a special unit makes such an inquiry, the States obligations
could be carried out. Mere reliance on affidavits is often to the disadvantage of the
applicant, who is often unfamiliar with the system and, more often than not, poor. Thus,
torture victims cannot be expected to have all the resources required to find out the
necessary matters relating to the violations of their rights and have them placed before the
courts. In cases where an SIU of the CID has conducted investigations into torture
complaints, they have come out with a great deal of evidence that the ordinary layman is
unable to have access to. For example, in such SIU inquiries, documents in the possession of
the police stations have been looked into and, often, much evidence has been found to
support victims allegations. All the considerations shown above require a re-examination of
Article 126 of the Sri Lankan Constitution, and ways to improve this remedy should be
found. However, the present government policy, which is to discourage investigations into
torture and other allegations of human rights, is likely to adversely affect the fundamental
rights writ as a remedy.

CHAPTER 7 - HUMAN RIGHTS


6.1

Right to Engage in Demonstrations


A letter written to the National Police Commission of Sri Lanka
On the riot police disruption of the students demonstration on 29.10.2015
We refer to our earlier letter dated 30th October 2015, on the subject of the attack by riot
police on the students of the on 29th October 2015. As it has been reported that the NPC,
would hold an inquiry into this incident we wish to suggest that the following matters are
relevant for such an inquiry and therefore, we would wish that the NPC would among
others, inquire into the following matters.
The role of the police with regard to public demonstrations.
To organise and to participate in demonstrations is a recognised right in any democracy. It is
a legitimate activity, as any other such legitimate activity. The organisers and the
participants of a demonstration are exercising their constitutional rights.
When citizens are exercising their constitutional rights what are the duties of the police?
Like in all instances of citizens using their constitutional rights, the duty of the police is to
create an enabling environment for the demonstrators to engage in their legitimate activity.
Such an enabling environment can be created only if the police who attend to any duties
relating to such demonstrations, behave as protectors of the constitutional rights of persons
who are taking part in such demonstrations.

44

The role of a protector should be distinguished from the role of a predator. The police who
attempt to facilitate demonstrations should be trained to act with an understanding of the
role of a protector. If such officers are trained instead as predators, their entire mental
outlook towards the demonstrators would be one of hostility. Many of the attacks on
demonstrations in Sri Lanka in the recent years, has been a result of the lack of a proper
democratic education of the police who are sent to the sites of such demonstrations. If the
officers are trained about their legal obligations and on their own as the protection or
guardians of peoples rights, the entire mentality of such officers behaving like predators can
be avoided.
Demonstrations are a feature of life, in all democracies. While, within authoritarian states
demonstrations are banned or discouraged, a democracy consider demonstrations as part of
the creative participation of citizens, in public life. A democracy encourages participation
and participation implies the use of freedom of expression and freedom of assembly. If the
police behave as destructors of demonstrations, they are in fact, disrupting the democratic
life of the country. It is the duty of the State to provide adequate education to any officers
who attend to such matters so that their behaviour will be conditioned by the understanding
of their duties and obligations.
Therefore, there is legitimate reason for the NPC, to inquire into the kind of education that is
imparted to the officers who attend to such demonstrations and particularly to inquire as to
whether the legal and human rights obligations have been a part of the education of such
officers. If the NPC enquires into this matter and make recommendations for better
education of the police, on legal and human rights obligations of these officers, the NPC
could then contribute to bringing about a change of culture within Sri Lanka - on
demonstrations, as well as other forms of peoples participation in public life.
Distinguishing demonstrations from riots
Participation in a demonstration is a democratic right of all citizens. To misconstrue a
demonstration as a riot is perhaps at the root of some of the bad practices of officers relating
to public demonstrations in Sri Lanka.
The ordinary dictionary meaning of a riot is as follows; riot, is a form of civil
disorder commonly characterized by a group lashing out in a violent public disturbance
against authority, property or people. Riots typically involve vandalism and the destruction
of property, public or private. The property targeted varies depending on the riot and the
inclinations of those involved. Targets can include shops, cars, restaurants, state-owned
institutions, and religious buildings.[1]
Riots often occur in reaction to a perceived grievance or out of dissent. Historically, riots
have
occurred
due
to
poor
working
or living
conditions,
governmental oppression, taxation or conscription, conflicts between ethnic groups, (race
riot) or religions (sectarian violence, pogrom), the outcome of a sporting event (football
hooliganism) or frustration with legal channels through which to air grievances. Source:
Wikipedia
Riots are rare occurrences and the actions that the State should take for controlling of riots
should not be equated with the State interventions to provide protection for demonstrators.
This raises a fundamental question; as to whether riot police should be called upon at all to
the scenes of public demonstrations? The very act of summoning the riot police to a public
demonstration creates a tense atmosphere generating a fear among the demonstrators that
they may be attacked at any time.

45

The equation of demonstrations with riots is often the root cause of calling for the use
of water cannons and tear gas
While the use of such methods can be legitimate in the instances of riots, there is no
legitimacy for the use of such methods in dealing with citizens engaging in demonstrations.
The very presence of such instruments creates the impression that the participation in the
demonstration itself, is some sort of a hostile activity towards the State.
Thus, the very understanding of the nature of demonstrations in a democracy becomes
distorted by bringing such instruments to the scene of a peaceful public demonstration.

In the context of Sri Lanka, it is also necessary to distinguish legitimate activities such
as demonstrations from insurgent activities.
Sri Lanka has gone through a long period where the State engaged in counter insurgency
activities under particular circumstances. However, the situation that exists now in Sri
Lanka, is different. However, it may be natural for security agencies that have been
mobilised over a long period of time, on counter insurgency activities to continue to suffer
from the mentalities created in such times - even during times of peace. When a transition
has taken place, from such situations to a peace time, it is the duty of the State through the
leaders of the security agencies to re-educate all security officers on the manner in which
their conduct needs to be adjusted to peace times.
The manner in which the riot police and even other agencies like the Special Task Forces
have been mobilised against demonstrators indicate that no such change of mentality has
taken place within the security agencies. The NPC could play a useful role in investigating
as to what measures have been taken within the Units, like the riot police, to bring about a
change of mentality in order to condition them to adjust better to peacekeeping in peace
times.

The attire of the riot police


The attire of the police is another matter that needs to be looked into. Was it necessary for a
batch of riot police in their full gear, with their unique type of helmets, and other
paraphernalia, to be mobilised to assist a group of students who were participating in a
public demonstration. The photographs show, a tremendous incongruity, where unarmed
students are being surrounded by a group of officers attired like Gladiators. Such gladiator
like figures who are kept in isolation when let loose on crowd, think of their roles as that of
fighters or attackers rather than peacemakers.
When we look into many countries today, officers who accompany demonstrations, are not
clad in this manner. In the neighbouring Kerala Sate in India, the police who attend to such
demonstrators are clad in their usual attire, and carry only a small cane-like stick, to be used
only when orders are issued for such use, by a superior officer, when there is a situation of a
disturbance. The change of attire itself was to indicate that the officers themselves belonging
to civilian policing and their function is only to assist the citizens in their legitimate
activities. In other jurisdictions, like in Hong Kong, the officers do not even carry any such
sticks. They remain in their normal usual police attire and are being specially trained to be
polite and courteous to the public. We suggest that the NPC should inquire as to whether
this type of riot gear should be worn at all, when the officers are called to attend to normal
peacetime, public demonstrations.

A further issue of importance is about command responsibility.


Before riot squads are sent to any place, it is the duty of the Superior Officers to investigate
whether a situation of a riot or a situation of a disturbance exists at all, requiring the
46

engagement of such riot squads. Such decision must be taken by the superior officers in
taking into consideration all the circumstances of the situation. Where, any request is made,
for their attendance is the duty of the superior officers to assess whether there is any
legitimacy for acceding to such requests. After any deployment takes place, it is also the
duty of the superior officers, to supervise the manner in which the officers under their
control engage in such a situation. If the officers act in a wrongful or inappropriate manner
it is the duty of the superior officers to stop such a conduct. If such interventions have not
been made by the superior officers, they have failed in their obligations relating to command
responsibility.

A further issue of relevance is the issue of proportionality


Any action that is taken in the event of some unfortunate disturbance in a public
demonstration, and any action that is done to control such a situation must be justifiable in
terms of the proportionality of such an action. Any action that is disproportionate is an act of
violence, on the part of officers themselves for which they should be held responsible.
Assessment of political consequences of security officers disturbing public
demonstrations.
Actions taken by security officers in these circumstances are perceived by the public as the
actions of the Government. If, a public demonstration is attacked by the security officers, the
public perception is that the Government has mobilised such officers for such actions. Thus,
a Government can suffer a serious damage to its image when such actions occur. When
political damage is done in that manner it is difficult to erase the impressions made by the
public. Thus it will be the Government in power that will suffer most when officers engage
in such actions.
The report that the police claim that their attack was provoked by the unruly
behaviour of the students.
It is quite likely that the officers trained in a riot squad would see slogan shouting students
as being unruly. Here again, what is demonstrated is the limited mentalities that have been
cultivated within the riot squads of which many officers may not have the adequate
education to understand the manner in which democracies work and how people participate
in public life.
We hope that the NPC, would look into all such and other relevant measures with the view
to bring an end, to this kind of actions of the riot police, and also to contribute to a
harmonious culture where vibrant democracy can prevail allowing all its citizens to express
their grievances in a peaceful atmosphere.

6.2

Right to life
The right to life and other fundamental rights;
The absence of a right to life in the Constitution: Even though the Supreme Court has
recognized a limited right to life, to the extent that the death penalty can be enforced only
through a decision of a competent court, this has little impact on a positive recognition of
the right to life. The judicial reasoning was in any event, only in three decisions of the Court
several years ago and have not been reflected in recent jurisprudence. Our submission is that
47

a limited judicial recognition cannot satisfy the need for express constitutional inclusion of a
right to life.
Since 1971 Sri Lanka has experienced large-scale enforced disappearances. The law in Sri
Lanka does not prescribe a limitation to the power of the Executive and the Parliament to,
respectively, take actions or legislate in a way that undermines the basic right to life. Public
security laws, developed in terms of emergency regulations and anti -terrorism laws,
empower the security forces to engage in enforced disappearances and other acts that
deprive citizens of the right to life. There is no provision in the Sri Lankan Constitution to
guarantee Article 6 of the ICCPR, which lies down that every human being has the
inherent right to life. This right shall be protected by law. No one shall be arbitrarily
deprived of his life. The vast number of enforced disappearances of Sri Lanka
demonstrates how officers in the security forces can deprive the life of a person without any
reference to a court decision on the matter. Under the pretext of someone being classified as
a terrorist by the security forces, the decision and action to deprive the life a person can be
taken by the security forces themselves. What is internationally known as the power of the
Russian Cheka has been operative in Sri Lanka, leading to large-scale enforced
disappearances over a period of about 40 years.
Article 6 of the ICCPR Againts arbitrary deprivation of life
Recommendations relating to Article 6 of the ICCPR:
The government of Sri Lanka must ensure, both by legislation and the enforcement of
laws, that only a competent court has the power to order the death sentence: The
practice that has prevailed, particularly in the last 40 years, of allowing officers of the
security forces to be the accuser, investigator, adjudicator, executioner and disposer of the
bodies, should be specifically outlawed by legislation; particularly in situations in which
emergency laws and anti-terrorism laws are in operation. Clear prohibitions must be laid
down and enforced to ensure the end of the above-mentioned practice, which can also be
summed up as the imitation of the practices of the Russian Cheka.

The government should take speedy action to bring legislation criminalizing enforced
disappearances: No perpetrator of enforced disappearances should be allowed to avoid
prosecution due to the absence of a law criminalizing enforced disappearances, as is the case
at present. The State Party should speedily become a signatory to the International
Convention for the Protection of All Persons from Enforced Disappearances. The State
Party should legislate with regard to the offence of enforced disappearance; the principle
against retrospective criminalization should not operate.
The State Party should ensure that the offence of murder would necessarily lead to
credible investigations and prosecution through the countrys public justice system: In
instances of the offence of murder, private settlement as in private disputes should be
disallowed.
The prevalent practice of offering and granting suspended sentences to those charged with
murder should be discontinued forthwith.
Particularly in cases of murder alleged to have been motivated by political reasons, the State
Party should ensure that credible investigations take place.
All steps must be taken to make sure that investigating officers are not afraid of properly
carrying out their duties due to fear of reprisals.
48

The State Party should ensure that trials, particular in relation to murder and other
serious offences, should be held from start to finish continuously: The present practice
of postponing cases after short hearings, with cases going on for years, should be
discontinued forthwith.
After the completion of an investigation, indictments should be filed and the case should be
held and completed within a period of about a year. The United Nations Human Rights
Committees recommendations regarding undue delay on the holding of trials (expressed
through its views on several communications from Sri Lankan petitioners) should be
carefully implementedi.
Particularly, during investigations and trials relating to murder and other similarly serious
offences, the protection of the complainant and the victims should be ensured. The State
Party should ensure that police officers attend to complaints, relating particularly to murder
and other serious offences - and, in relation to all offences without the harassment of
complainants and witnesses. The State Party should ensure the existence of a disciplinary
procedure, particularly in relation to police officers and officers of the Attorney-Generals
Department, which will ensure credible investigations into all allegations of bribery and
corruption, through which the suspects or accused in murder cases and other serious cases of
crime find ways to escape the process of strict enforcement of the law.
6.3

The loss of freedom of expression and the intimidation of the media


The State Partys response that the Parliamentary Powers and Privileges Act of 1978 has
been repealedii is incorrect. What has been repealed is only a limited amendment to the Act.
The Act remains in full force, restricting the power of journalists to report on proceedings in
Parliament. The killings and abductions of journalists remain un-investigated. The
militarization of the state structure has resulted in journalists being assaulted, threatened and
intimidated in situations of public disorder (i.e. the attack by the army on unarmed protestors
at Weliweriya in 2013 and, in 2014, the communal violence on Muslim villages by radical
Buddhist priests in Sri Lankas South West). Journalists who reported on these matters were
routinely questioned and put under surveillance. The Government, in a 2014 circular,
prohibited non-governmental organizations from holding training workshops for journalists.
Tamil journalists travelling from the North to Colombo to participate in such workshops
have been detained at checkpoints.
Though the State Party refers to the existence of bodies set up by the media industry in
support of its position that freedom of expression is not under threat, mobs stormed the
central office of the Sri Lanka Press Institute, situated in Colombo, in July 2014 during the
holding of a training programme. Perpetrators responsible for these attacks have not been
identified and brought before the Courts.
Widespread abuse of state media and state resources by the Government in election
campaigns is also evident.

6.4

Right to fair trial


The State Party should provide opportunities to the Sri Lankan public to air their grievances
and criticisms relating to the setbacks on fair trial, assess such grievances, and take
corrective actions to ensure that Article 14 of the ICCPR is respected and implemented in
Sri Lanka.
49

The State Party should make amendments to the Constitution to ensure that the judiciary is
treated as an independent branch of the government and that the recognition of such
independence is manifested through the processes of appointments and promotions, as well
as in the disciplinary process and in the dismissals of judges; the prevalent understanding is
that the Executive President controls all these functions and, therefore, the appointments,
promotions, disciplinary control processes and dismissals of judges, including judges of the
Supreme Court, are done for political reasons that act detrimentally to the independence of
the judiciary.
The prevalent constitutional provisions and practices which were used in the impeachment
of the Chief Justice, Dr. Shirani Bandaranayake, were all done in direct contradiction to the
principles relating to the removal of judges followed in countries where the independence of
the judiciary is respected and where the separation of powers principle is entrenched. The
foul play practiced on the occasion of the removal of the Chief Justice has thoroughly
shaken public confidence in the judiciary as an independent institution. Thus, all
constitutional provisions relating to the impeachment of judges must be laid down in terms
of international norms and practices applicable to such impeachment processes.
The State Party should take serious measures to ensure that the principle of open justice is
respected in Sri Lanka. The recent practice of holding in camera court proceedings for the
examination of the constitutionality of proposed legislation, including proposed
amendments to the constitution, is a blatant violation of the judicial process and the notion
of open justice. The exclusion of public participation and the absence of lawyers in such
judicial actions result in judgments which cannot be considered as judicial in nature. By
making such exclusions the judiciary virtually acts as an arm of the Executive. Such
judgments can have disastrous effects on the rule of law and democracy. Further, such
actions expose the judiciary to public ridicule and decrease confidence in the institution.
The judiciary as a branch of the government must exercise its duty to protect its own
independence. In the recent past there have been many instances in which the judiciary itself
has acted in a manner that is contrary to the principles of the independence of the judiciary.
This was well illustrated in the impeachment of Sri Lankas 43rd Chief Justice, which was
initially ruled to be contrary to constitutional principles relating to due process by Sri
Lankas Court of Appeal and Supreme Court. The Court of Appeal in fact quashed the
proceedings of a Parliamentary Select Committee which, through its government
parliamentarians, had upheld the impeachment. One year later, another bench of the
Supreme Court, under a new Chief Justice, reversed this decision and stated categorically
that a Parliamentary Select Committee is not subject to judiciary review. This was a
manifest travesty of justice.
The interpretation of the principle of the Supremacy of Parliament as meaning that the
Parliament can act in violation of the principle of the independence of the judiciary can have
a virtually nullifying effect on the meaning of judicial power in Sri Lanka. The
interpretation of these principles by the Parliament, as well as by the judiciary, is contrary to
the manner in which these principles are interpreted in other common law jurisdictions. At
50

present, there is a serious crisis on the manner in which the judiciary is being treated in Sri
Lanka. So long as this matter is not addressed in favour of a proper liberal democratic
interpretation, the public in Sri Lanka will have serious doubts about the protection of their
rights against arbitrary violations by the Executive through the judicial process. This crisis
casts serious doubts on what valid and legitimate roles the legal profession can play on
behalf of their clients in defense of their basic rights.
The State Party should take serious action in order to restore the legitimacy and the
democratic role of the legal profession in Sri Lanka. The prevalent situation is one in which
the role of the legal profession is being drastically undermined, not only on constitutional
matters but also in every kind of litigation, including litigation relating to property rights.
The State Party should address the serious crisis that exists in the criminal justice process in
Sri Lanka. The prevalent situation is one in which the roles of all relevant state actors, such
as the police in their investigative role, the Attorney Generals Department in its role as the
public prosecutor, and the judiciary in its role, have all been undermined due to
constitutional provisions which have resulted in the politicization of all these institutions.
These constitutional provisions have also led to the erosion of the power of the police as a
civilian policing institution, the Attorney Generals Department as an institution working
within the framework of rule of law, and the judiciary as one that functions within the of
principles of open justice.
The State Party should re-examine its claim about implementing the recommendations of the
Lessons Learnt and Reconciliation Commission (LLRC), to ensure the functioning of the
policing system as a civilian policing system by bringing the Department of the Police under
a Ministry of Law and Order. However, the prevalent situation is that of a directly politically
controlled policing system, where the Inspector General of Police and higher-ranking police
officers have lost the command of the institution and the institution is controlled from
outside. This has drastic consequences on the rule of law in the country as a whole, and the
capacity of the police to bear the responsibility for the control of crime.
The State Party should critically examine the deepening militarization within the police.
Since the Justice Soertz Commission of 1946, the matter of the militarization of the police
has been raised by several subsequent commissions. However, none of the recommendations
of these commissions have been implemented. Instead, the policing system has been
allowed to be further militarized, both in its mentality and its practices. The idea of the
development of a civilian policing system within the conceptual framework of the British
metropolitan police has not even been ventured into in Sri Lanka.
The State Party should address the problems relating to the politicization of the Attorney
Generals Department and its virtual incapacity to act within the framework of the rule of
law. The prevalent situation is a result of direct political control of the Executive of this
institution, which has brought it directly under the Presidential Secretariat by virtue of a
Gazette notification.

51

The State Party should also seriously examine its inability and failure to address some of the
perennial failures of the judicial system, particularly in terms of undue delays and archaic
procedures that result in dragging litigation on for over ten years or more.
The State Party should look into several failures of the appellate process, both in the Court
of Appeal and in the Supreme Court, and in particular the failures to immediately
communicate the decision of the Appellate Court to the relevant trial court, even in instances
when the court has ordered fixing of retrials at the trial courts in the relevant cases. A direct
case in point is regarding Jerad Pereras case referred to aboveiii. It must be emphasized that
such failures leave room for corrupt practices with the connivance of certain judges.

CHAPTER 7
7.1
The failure to provide effective remedy to violations of human rights in terms of the
Article 2, of the International Covenant on Civil and Political Rights;

Negation of the remedies of Fundamental Rights and Habeas Corpus in relation


to disappearances
A detailed analytical study of 884 habeas corpus cases, covering the period from 19942002, found that the practical inefficacy of the implementation of writs defeats the remedy. iv
This status quo has not changed in the succeeding decade. For example, in the period under
consideration by the Committee, the habeas corpus application of 'disappeared' journalist
Prageeth Ekneligoda illustrates the failure of this remedy as this case has been pending for
many years. Petitions filed by Tamil mothers and fathers of those who disappeared during
the ending of the conflict in the Wanni in 2009 remain similarly pending before courts. State
agents merely deny taking the victims into custody. Earlier, the State was compelled to pay
compensation and acknowledge the disappearance where no specific state agent could be
held responsible, but this practice has not been evidenced in recent years.
It has been pointed out that solutions require changes in law, administrative procedures,
judicial structure, as well as securing of the independence of the judiciary . The International
Crisis Group has linked the failure of the Writ of Habeas Corpus to the overall legal and
political milieu that includes the diminishing independence of the courts, the inadequacy of
cvonstitutional provisions to empower the courts, the passage of emergency laws that further
limit its powers, and the reprehensible political influence exercised by the executive on the
judiciary.
The constitutional remedy of fundamental rights has virtually fallen into disuse as the
Supreme Court has refrained from asserting its authority against powerful state actors,
particularly the Ministry of Defence.

Inadequacy of Article 126 of the 1978 Constitution on providing a remedy for human
rights violations
Declarations do not lead to any consequences: A declaration made under the Fundamental
Rights jurisdiction of the Supreme Court, stating that violations of anti-torture law have
52

been committed by the respondents, i.e. the police or military officers for the most part, does
not have any direct practical consequence. It does not affect the further employment of these
officers in their departments, or their promotions.
Financial awards low: Further, where compensation is awarded, the financial awards are of
very low amounts and in no way reflect the obligations of the State under the CAT Act for
compensation of torture victims in terms of covering their medical costs, legal costs, as well
as compensation for the psychological damage. The Sri Lankan Supreme Court has not yet
adopted legal principles relating to the assessment of responsibilities for causing
psychological damage to victims. Many of the victims suffer serious abuse at the hands of
the respondents, which can cause trauma, acute stress disorder, post-traumatic stress
disorder, as well as many other forms of psychological damage. A few years ago the
Supreme Court adopted better standards for the assessment of compensation, such as, the
case of Jerad Perera and a few other cases. In Jerad Pereras case, the total compensation
came to Rs. 1.6 million which is around US$ 16,000 which was without calculating the
damages from the point of view of of psychological injury. However, in recent cases in
which torture is proved, damages may run from around Rs. 5,000 up to, Rs. 100,000 - in rare
cases,. That is between US$ 50 to US$ 1,000. Perhaps the reason for reducing the amounts
of damages may be to discourage more persons from pursuing litigation. However, the clear
policy for such reduction has not been stated.

CHAPTER8 Inadequate Remedies for violations of rights


The failure to provide adequate funds to maintain a functional
law enforcement and judicial system; the resulting dysfunctional
state of the Sri Lankan law enforcement and judicial systems.
8.1

The need to allocate funds for police reforms - Letter to the Minister of Finance
Honorable Minister Ravi Karunanayake,
I firstly congratulate you for being appointed the Minister of Finance in the newly elected
government of the Hon. President Maithripala Sirisena. As the government has promised to
establish good governance, something that has been absent for several decades, on behalf of
the Asian Human Rights Commission, I assure you of our complete support for all actions
and programs that will be undertaken for this purpose.
I am writing this letter in order to draw your attention to two important components
necessary for the establishment of good governance that if they are to be realized, would
require budgetary allocations.
As the Minister of Finance, you will have a pivotal role to play in ensuring the
implementation of measures towards good governance, because transforming words into
actions requires budgetary allocations, and your Ministry will have a vital role to play in
making such budgetary allocations possible.
53

The two major areas where such budgetary allocations would be required are: 1) Measures
for the modernization of the Sri Lankan police, to progress from the primitive style of
policing that exists in the country to one that is possessed of the qualities and capacities
found in modern times in many countries; 2) The establishment of a commission against
bribery and corruption that could genuinely implement a program of prevention of bribery
and corruption, again, in terms of what has been achieved in many countries in modern
times. One recognized example is the Independent Commission against Corruption (ICAC)
in Hong Kong.
Allow me to expand on these two items in more detail:
Measures for the modernization of the police
As you may be well aware, the model of policing established by the British in colonial times
was one based on the Irish constabulary style. This was basically a militaristic style of
policing to protect the interest of the colonizers, rather than the style of civilian policing,
introduced in Britain in the style of the London Metropolitan police, which was based on the
concept of policing by consent. Similar reforms occurred in France over a long period of
time. These models have been replicated in all developed countries. From the point of view
of such transformations, the policing that exists in Sri Lanka is one that is primitive and
unsophisticated. Without a fundamental reform of the policing system, it is not possible to
achieve good governance as understood in the modern political context.
Another factor that retarded the development of the Sri Lankan police further was the
insurgencies that arose in Sri Lanka starting in 1971. During those times the police were
used for military functions for the control of insurgencies, which in the Sri Lankan context
unfortunately involved the use of forced disappearances, extrajudicial killings, the use of
torture and ill-treatment, and other forms of extra judicial and unconstitutional illegality.
This situation was worsened due to the political style initiated by the 1978 Constitution,
which brought all public institutions under the control of the Executive President and
thereby destroyed the internal controls of command structure in the policing organization,
which was supposed to be led by the Inspector General of Police and his deputies. Undoing
all this damage is an unavoidable part of making the Sri Lankan police capable of
undertaking the tasks of modern civilian policing.
The 1946 Justice Soertz Commission recognized that Sri Lankan policing was created and
being maintained in a militaristic style. However, the reforms that he suggested were
unfortunately never implemented. This was followed by the Justice Basnayake Commission
in 1970 and Justice Jayalath Commission in 1995. Perhaps due to the political situation that
developed during the last decades of last century, none of the recommendations made by
these commissions were implemented.
The exact projects and programs needed to achieve the requisite reforms to attain modern
civilian policing are the task of the police department and other associated agencies of the
government, along with contributions from Sri Lankan civil society. Naturally, for the
citizens of Sri Lanka, such reforms are some of the most important aspects of the changes
they seek in order to be able to live their lives in a secure and stable atmosphere.
From the point of view of economic development as well, the establishment to modern
civilian policing is a paramount prerequisite to strengthen the protection for local
entrepreneurs, to encourage foreign investment, as well as to create an ethos for undertaking
state ventures directed towards development.
If all this is to be achieved, the Ministry of Finance will have to play a pivotal role to ensure
that budgetary allocations are made for the achievement of such goals. Past budgetary
54

allocations have failed to provide sufficient resources for strengthening and modernizing
policing. It will therefore fall on your shoulders to provide an enlightened vision and the
resources for achieving that vision in the immediate years to come. In implementing
President Maithripala Sirisenas vision for the rule of law and good governance, much of the
practical responsibility of creating the possibilities of such changes rest on your shoulders.
We earnestly hope that you will make the necessary allocations and also provide an
enlightened leadership for the achievement of these tasks in the immediate years.
The establishment of a genuine commission against bribery and corruption
That, in the post-independence period, Sri Lanka never made a genuine attempt to establish
an effective commission against bribery and corruption is beyond dispute. Even the British,
by the time they left, had not taken steps to ensure the existence of such a control
mechanism. However, in Hong Kong the economy began to develop, the British did
differently. By the time the British colonial rule ended in 1997, there was already in
existence a solid, established, Independent Commission against Corruption (ICAC). The
decisive step was taken in 1974 and, within a few years, it achieved its aim. Today, Hong
Kong is a society with very limited bribery and corruption. The greatest strength that
provides stability for Hong Kong is the existence of this effective corruption-control
mechanism. By now, it has sunk into the consciousness of the people of Hong Kong that
corruption is the most destabilizing factor in society, and that it should never be allowed to
raise its head again. Despite Hong Kongs political sovereignty being handed over to the
Chinese in 1997, the efficiency of the Commission not only remains; it is, in fact,
improving. The ICAC is able to prosecute officers holding the highest positions and some of
the richest company owners too.
Once again, the key difference between talk of ending corruption and condemning the
colossal corruption of the Rajapaksa family and the action needed to establish an effective
corruption control system is the provision of the necessary budgetary allocations for the
functioning of an effective commission. An effective commission should have its own
investigating capacity, which means that recruitment of police officers on secondment basis
to the commission should be brought to an end. This is one of the critical factors to the
success of the ICAC in Hong Kong. The control of information leaks in ongoing
investigations cannot be achieved as long as the staff of the anti-corruption commission is
not independent of and delinked from the policing system. The control of bribery and
corruption in the policing system is the first step towards the establishment of the rule of law
and the expansion of corruption control to other sectors, including the private sector. A
further requirement of an efficient system of corruption control is highly trained
investigators and the availability of forensic and other technological facilities. It follows that
the establishment of such a commission is not possible without considerable investment by
the government through budgetary allocations.
The resources are now available for effective corruption control. What is needed is the
transfer of this know-how to Sri Lanka, taking practical steps to achieve this transfer. While
the change in attitude requires the political will of the government, the Ministry of Finance
can make it possible to take these practical steps. If, in the coming years, the corrupt
tradition, which permeated the last regime, were to continue, part of the blame would have
to be accepted by the Ministry of Finance. On the other hand, if this great task were to be
achieved, it would be to the highest credit of the foresight and political will of the Ministry
of Finance.
I am, on behalf of the Asian Human Rights Commission, bringing up these two important
components as well as the budgetary allocations that underpin their success, at this early
stage of the tenure of the new Minister of Finance because Hon. President Maithripala
Sirisena and the new democratic alliance have repeatedly affirmed that ending corruption is
55

a central ambition. Whether this promise is transformed into actual realization will be seen
in the coming years. The Asian Human Rights Commission firmly hopes that, under your
leadership, the Finance Ministry will make its strong contribution so that a modern economy
can develop and the social and cultural change that the nation has so needed since its
independence can be achieved.
As a human rights organization, the Asian Human Rights Commission is deeply aware that
any government that chooses not to address the issues of police modernization and
corruption control will soon enough return to repressive practices in order to maintain its
power. Thus, the very task that the new government has promised to change all the
pernicious aspects of the 1978 Constitution will not bear fruit unless these two important
aspects are addressed. The electorate, which has voted in the government, wants an end to
extrajudicial killings, including enforced disappearances, an end to the widespread use of
torture and ill-treatment, and an end to every form of distortion of the system of justice in
the country. As such, it is an integral part of all human rights actions to concentrate on the
removal of the root causes of repression and violence, instead of merely protesting when
such violence begins to reoccur. In this spirit, we promise you complete support and
cooperation in carrying out your duties for the achievement of the above goals. We will do
our utmost to ensure public support for such measures.
In the years to come, we will try to educate the people of Sri Lanka about the fundamental
role of the Ministry of Finance in ending repression and violence, and creating the ethos for
the settling of disputes within the framework of the rule of law and human rights, including
problems related to the rights of minorities.
The problems faced by minorities are a result of the failed political strategies and not due to
any inherent conflicts between the majority and the minorities. The 1978 Constitution, in
particular, contributed to pushing this problem outside the democratic boundaries and
created a situation of extreme instability. Now that the new government is promising an era
in which the 1978 Constitutions aberrations will be a thing of the past, we look forward to
seeing the contributions made, not merely in words but by practical strategies, including
practical budgetary investments for creating a framework for stability, peace, and prosperity
in Sri Lanka.
On matters related to the basic rights and the protection of those rights, we assure you of our
cooperation and active support.

8.2
Letter to the Ministry of Finance calling for adequate financial allocation towards the
modernisation of the institutions of police, justice, corruption control, and for the effective
implementation of the new witness protection law in Budget 2016
4th September 2015
Mr. K D N Ranjith Asoka
Director
Department of Trade and Policy
Ministry of Finance
The Secretariat
Colombo 01
Sri Lanka
Dear Mr K D N Ranjith Asoka,

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Response of the Asian Human Rights Commission to the Call for Proposals in regard
to the formulation of the 2016 Budget - issued by the Ministry of Finance, Sri Lanka
In response to the calls for proposals from the public for the 2016 Budget by the Ministry of
Finance, Sri Lanka we are submitting to you the following proposals deemed as essential to
ensure good governance and increase in the efficiency of the state apparatus as a
consequence of which development of the productivity and the efficiency of the Sri Lankan
economy may be better enabled.
Making adequate financial allocation to modernising the policing institution
We note that the statement of Government Policy presented by His Excellency the President
on 1st September 2015 in the Parliament has clearly emphasized the commitment of the State
to end corruption, waste and fraud. Practically speaking, this objective can be met only if
there is effective law enforcement in Sri Lanka. To end corruption fraud and waste, there
should be a financial commitment to significantly improve the law enforcement capacity of
the government.
When it was campaigning for power during the presidential elections of January 2015 and
the general election of August 2015, the present government exposed the manner in which
Sri Lanka's legal system has been undermined and the extent to which the policing, the
prosecution and judicial systems have been destabilised by the previous government due to
its neglect of good governance.
We do not wish to labour to demonstrate the extent to which the Sri Lankan policing system
has suffered not only during the previous government but also since the adoption of the
1978 Constitution through which the Executive Presidential system which the new President
has vowed to dismantle, brought in politicisation of all institutions including law
enforcement agencies. The question that arises for the preparation of the Budget is the
manner in which to provide the necessary financial resources to remedy such destructive
past precedents. The saying to put your money where your mouth is, directly applies in
this instance. For no amount of rhetoric can undo corruption, fraud and the waste unless law
enforcement agencies are given the necessary resources to function properly in fulfilling
their obligations.
The Sri Lankan policing service provides a useful example of the finances that are needed in
order that it can become a modernised policing force with both human as well as other
material resources which would allow them to function efficiently. It is acknowledged that
the Sri Lankan policing service still remains basically in its colonial mode and it has even
being pushed back further due to the political climate since the 1970s up till the present
times. In all functional democracies the world over, new models of policing which are
suitable for democracies have been developed. In the United Kingdom, this process started
as way back as in 1832 when the Metropolitan policing system, which was based on the
notion of policing by consent, was introduced. The very notion of policing underwent a
radical change. It was that process which has also been initiated in other countries like the
United States and most European countries which has enabled these nations to achieve the
levels of stability that they experience now. It is this stability that brings in investments and
sustains their economies. The failure and instability of law enforcement in the country is
a fundamental obstacle for countries like Sri Lanka in order to attract direly needed
investments for its economy. When His Excellency the President talks about the need to end,
corruption, fraud and waste, he is in fact acknowledging how these factors have brought
about the undermining of social order and as a result, are undermining the possibilities for
economic growth.
All observers agree that policemen in Sri Lanka are poorly paid, and poorly equipped and
very poorly trained. Improved law enforcement requires a radical change in all those

57

aspects. Above all, the investigation of crime needs to be done only by skilled investigators
who have been given the opportunities to be educated in regard to the various branches of
the forensic sciences and other skills such as efficient communication skills that are a
fundamental part of any modern institution. Computerisation of all documentation beginning
with the recording of complaints and other evidence could within a short time bring great
relief to all the citizens who resort to seek relief through the legal process. The actual cost
of such a computerisation process may be comparatively small but the benefits to the system
as well as to the citizen are enormous. In modern society, corruption and crime are
sophisticated affairs. Unless the law enforcement agencies are superior in their
sophistication, they would become victims of all kinds of manipulations with the result that
the present unhappy situation will continue.
Therefore, it is essential to estimate the budget needed for the modernisation of the policing
system. We wish to emphasize if the needed budget is not provided, the Finance Ministry
would have to take the responsibility for the failure to implement perhaps the most
important policy declared in the Governments policy statement which is to end corruption,
fraud and waste. We hope the Ministry of Finance would understand the gravity of this
situation and make a clear commitment by reserving adequate financial allocation for this
purpose in the forthcoming Budget.
We note further that for many decades, the Sri Lanka Police has been seriously exposed to
criticism in international and local forums due to widespread use of torture and ill treatment
by the police. Well documented records show that the victims are almost always from the
poorer communities. A police force that resorts to such widespread use of torture indicates
that it is poorly equipped to engage in the task of law enforcement. The use of torture and ill
treatment is an indication of an outdated and a primitive policing system. Modern systems
which relies on more technical means of collection of evidence does not need to resort to
torture and ill treatment. Besides, the available statistics show that almost 80 percent of the
victims of torture are innocent persons. In countries such as Sri Lanka, torture is effectively
used as a means of obtaining bribes. Therefore, the Governments commitment to end
corruption and fraud implies also the ending of the use of torture and ill-treatment. From the
point of view of enhancing the prestige of the law enforcement agencies in the international
forums as well as enhancing public confidence in these institutions, the providing of
adequate budgetary allocations for the proper functioning of the policing system would go a
long way.
Financial allocations to uplift the judicial institutions in Sri Lanka
One important critique featured in the opposition platform against the previous government,
related to the enormous damage done to Sri Lankas judicial institutions. In fact, over a long
period of time, a conscientious citizenry had expressed their dismay about the manner in
which judicial institutions have been attacked and neglected. Starving the institutions by
refusal to provide adequate budgets became a feature in Sri Lanka since former President J
R Jayawardena adopted such a policy. In order to enjoy excessive powers, the Executive
presidential system needed to undermine judicial independence. Such undermining resulted
in making the judicial system virtually dysfunctional. His Excellency the President and the
Prime Minister would have no difficulty in understanding that good governance is
impossible if the judicial institutions remain in this same dysfunctional state. Much needs to
be done to resuscitate the judicial institutions in Sri Lanka. One of the factors that will
determine whether such a change would happen is state commitment towards making the
necessary financial resources available.
Such resources are needed for the improvement of the capacity of judges, the improvement
of the infrastructure including improvement of the communication facilities to be in in

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keeping with modern court rooms with the use of computers, recording instruments, wellmaintained websites and the like.
The delays that are imbedded in the system of adjudication have come to a point where
citizens are discouraged from accessing the judicial process to find redress for their
grievances. This affects not only the citizens but also the government. A government in
power has a justifiable fear that manipulation of the possibilities for delay in the
adjudication process could be used as a means of sabotage of initiatives that it may want to
pursue. When governments have such fears it may result in such governments finding ways
to circumvent the legal process in the pursuit of their projects. That creates a lawless
situation and such a situation is extremely detrimental to the encouragement of investments.
Delay in adjudication is therefore a serious onslaught on the political system, the social
system as well as the economic system itself. Therefore, any government that wishes to
follow and enlightened policy in a realistic manner, would not dare to ignore such a negative
situation that exists within the judicial system due to the scandalous situation of the
prevalent delays. What is important from the point of view of the Budget is that such delays
in adjudication cannot be addressed in any significant manner without making the necessary
financial allocations to end such delays. This means providing financial resources for the
increase of judicial officers as well as other human resources, the improvement of
infrastructure, along with other investments such as in regard to creating adequate space for
court rooms, and also improving the communication structure. To maintain a judicial system
that is as dysfunctional as what exists now, is a colossal waste. His Excellency the President
has promised to end waste. If that is to be a practically realisable promise, then it is essential
that the investments as mentioned on ending such delays in adjudication should not be
postponed. We therefore urge that making of such budgetary allocations should be a priority
in the forthcoming Budget.
Budgetary allocations for creating an effective agency to control corruption
The Commission against Bribery and Corruption in Sri Lanka is built on an outdated model.
No efficient performance can be expected so long as this model is not abandoned in favour
of a modern system as is available in many countries in the world where corruption has been
effectively controlled. Modern corruption investigators are equipped with knowledge in
many fields that are connected to the ways which produce corruption. They are also
equipped in modern forensic sciences which enables successful investigations. They possess
the necessary equipment for efficiently carrying out their functions. They are also
adequately paid, so that they would not have to resort to other means of improving their
incomes to maintain their families. Given the vociferousness of the Government when in the
opposition, in exposing the corrupt nature of the previous government, citizens have a right
to expect that practical and tangible measures will be adopted in order to discard the
outdated model on which the Commission against Bribery and Corruption has been
designed and that a more modern system will be installed as soon as possible. Nothing
would discourage the electorate more, than to see that the governments claim to end
corruption is confined to mere rhetoric only. To go beyond rhetoric implies the provision of
adequate budgetary allocations to establish a modern Bribery and Corruption Control
agency which can act efficiently and speedily.
It is encouraging to note that His Excellency the President himself has publicly declared his
intention to replace the existing model of the Commission with a more modern system. We
hope that in the new Budget, the citizen will be able to see the financial commitment in
regard to the realisation of this much needed measure.

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Making budgetary allocation for the effective implementation of the new witness
protection law
After many years of agitation, it is encouraging to see the adoption of a new law on witness
protection during the period of the interim government. Now the question is as to whether
the law will remain merely a paper law or whether there will be a genuine attempt to
implement its provisions. This again implies making the necessary budgetary allocations in
order to ensure that various aspects of a witness protection scheme would be supported by
budgetary allocations. Effective witness protection requires the presence of officers who
have capacities needed to implement this particular law. Ensuring that these officers have
the financial and other means to carry out their duties is essential. Witness protection also
requires the allocation of various funds on behalf of the victims themselves in situations of
dislocation and other contexts. Of particular importance are the facilities provided for
particularly vulnerable segments of society such as women and children who are in need of
such witness protection. We hope that the Government will make the needed budgetary
allocation for this purpose in order to demonstrate its commitment to practical
implementation of this law.
We expect that the highlighted concerns would receive serious attention by policy makers
during the forthcoming formulation of the 2016 Budget.

Please see UNHRC Decisions - CCPR/C/87/D/1250/2004 - 26 July 2006

ii

See at paragraph 329 of the state party report.


Supreme Court SC/SPL/LA/No: 259/2012 op.cit.
iv
Kishali Pinto-Jayawardena & Jayantha de Almeida Guneratne, Habeas Corpus in Sri Lanka: Theory and Practice of the Great Writ in
Extraordinary Times (Sri Lanka: Law and Society Trust, 2011).
iii

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