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Sense and nonsense on judicial matters

Written By NAFSO on Saturday, October 03, 2015 | 12:49:00 PM

An article by the Asian Human Rights Commission

A comment on the approved UN Human Rights Council Resolution on Sri Lanka

Basil Fernando

Now that the UN Resolution on promoting Reconciliation, Accountability and Human Rights in Sri Lanka has been approved by the Human Rights Council, a new page opens up with possibilities of looking into and dealing with grave problems that havecrippled the entire justice system in Sri Lanka for several decades. What is meant by the ‘entire justice system’ includes the investigative branches into crimes, the prosecuting agency which is the Attorney General’s Department and also the judiciary. The crisis enveloping these institutions has a direct bearing on the successful implementation of the Resolution.

From that overall point of view, the challenges that the implementation of the Resolution will face within the Sri Lankan context are many - even if we take for granted, that the present Government may have the political will to implement the Resolution which it co-sponsored. One of the major areas of challenge is that the Sri Lankan justice system has been subverted in such a manner as would appear to be nonsensical to anyone who has a serious interest in justice. We may enumerate few such instances to illustrate this problem.

An average judge at any level, a prosecutor, a lawyer, and a criminal investigator in Sri Lanka is seldom outraged by the nonsensical if not absurd delays that inevitably attends the hearing of a case, even if this involves a grave crime. A Psychiatrist who has been attending Courts, to give evidence in many cases, sarcastically mentioned in a televised interview recently, that in one of the child sexual abuse cases, in which he is an expert witness that the incident happened when the child was an 8-year-old.Now this child is a 20-year-old adult, but the case is still being heard in the Courts. There are other cases where a rape incident which took place some 14 years ago is still being heard in the High Court.When the trial is finally scheduled to be over, if the accused is convicted, there will certainly be an appeal against the verdict, which will also take many more years to complete. In such a sea of apathy and absurdity, how could the trials for extremely serious crimes mentioned in the Investigative Report of the Office of the High Commissioner for Human Rights, be tried? Will a local judge, who may sit with other judges to hear such a trial, have a serious interest in speedy justice? When speedy justice is a concept that does not exist within the local judicial culture, what basis is there to expect that things will be different regarding these trials? Of course, one way out is, to have a farce, like the Criminal Justice Commission on Sri Lanka which heard the case relating to the 1971 JVP ( JanathaVimukthiPeramuna) uprising. Though judges sat on that Commission, the Commission was not a Court of law, and was not bound to follow due process under the legal procedure of Sri Lanka. Naturally, the Commission was severely condemned internationally. The purpose of that Commission was to arrive at some kind of a political solution, by the appearance of a trial.

If all the trials relating to allegations put forward by the OHCHR Report is to be examined merely by some special courts, how many such special courts would be needed to hear all these cases? In any case, would not the rest of the litigants in Sri Lanka who have to move in a sea of delay, have a right to protest against such special courts which will guarantee a different speed? This certainly is an area that the local and international experts talking about the implementation of this resolution would have to deal with.

Another example of an absurdity would be, the issue relating to torture and ill-treatment, extra judicial executions, and arbitrary deprivation of liberties, under which headings many of the allegations in the OCHR reports are listed. And what about the crimes under these same headings, but which falloutside specific incidents listed in the report? For example there is the CAT (Convention against Torture) Act No 22 of 1994, which has defined the offence of torture and ill-treatment, as a crime. Complaints made by ordinary citizens, of torture and ill-treatment have to be counted in thousands. Torture takes place every day, at every police station, and many officers vow that they cannot do without it. When such a widespread practice goes on, will not the victims of those crimes, have a right to complain that in fact, no justice is being done to them, while there are special trials for these special cases? Their anger will not be for the victims of these special cases being granted justice. Their grievance will be that they are not being treated equally.

The same argument would go regarding endless cases of rape and sexual abuse, child sexual abuse, and extra judicial executions. I have not mentioned here the question of enforced disappearances that have taken place on a very large scale in the past as enforced disappearances is not yet an offence in Sri Lanka. However once it will be made an offence, the family members who have lost their loved ones in previous cases of disappearances, are likely to be aggrieved of their inability to receive justice. The argument against them would be that about the inability to prosecute retrospectively. That in any case, would be the situation even regarding the cases mentioned in the OHCHR Report.

A much longer list of such absurdities could be enumerated and would certainly come up in the years to come when the Resolution is being implemented.

A further issue is regarding, the selections of outsiders to the proposed Hybrid Courts. There have been some Sri Lankan judges who in the recent times have been sitting in international tribunals hearing war crimes. These judges are not reputed as being impartial in their own country. In fact, some of them were as politically compromised as many others during the sad period when the executive presidential system determined the scope of justice in Sri Lanka. Naturally, Sri Lankans would want to have a guarantee that no such persons would be appointed from outside, to sit in their Courts.

If we are to take for granted that those who would come as expert investigators, prosecutors, and judges, would be those of integrity, and competence then still, there will be further problems. For example, how would a judge who does not tolerate scandalous delays sit together with a local judge who sees no problems with such delay?

The problem of the deep collapse of the justice institutions in Sri Lanka, would need to be addressed if a credible outcome is to emerge, from implementation of this Resolution. Mere arrival of experts alone would not suffice.

The purpose of this article is to raise the type of discussions on fundamentals and deeper questions of justice that beset Sri Lanka, such discussions should accompany any serious discourse on justice, as envisaged in the co-sponsored Resolution.

What the co-sponsored Resolution offers to Sri Lanka, is a great opportunity to deal with the ‘justice impasse’ that is troubling all people of Sri Lanka. However, that great opportunity would be missedif a serious discourse on the problems besetting the totality of the justice system is not seriously and thoroughly discussed at this early stage. On the other hand, if these matters are discussed and addressed, much of the future criticisms that may arise, regarding the actual implementation of the recommendations in this UN Resolution could be avoided.

Islandwide campaign asking protect the children and Stop drug abusing

Written By NAFSO on Thursday, October 01, 2015 | 6:58:00 PM

National Women federation of National Fisheries Solidarity, conducted a simultaneous protest  campaign on world children's day (Sri Lanka) in ten districts.

Sri Vimukthi Fisher women Organisation of Negombo, Distributed leaflets during the walking protest and submitted a letter with several demands including Provide necessary protection for women and children, Take action against drug abuse to relevant officers in Negombo Police station and to Divisional Secretariat office. Around 300 women were participated to the walking protest.

Southern Fisheries organisation in Mathara District conducted the district program with a protest in front of Sanath Jayasooriya International Cricket stadium and after 8 membered group has met District Secretary of the Mathara District and submitted a letter to her, asking take immediate action to protect children and women from violence and abuses and to prevent drug abuses.

According to district secretary, the Mathara DS office already have started a sociological research on causes and effects of child abuses and conducting monthly meeting on Children and women issues with relevant officers and the group has been invited to participate for monthly meeting as representatives of civil society.

Galle, Ampara, Puthlam, Polonnaruwa, Mannar, Trincomalee, baticaloa and Jaffna districts were also conducted the campaign with hundreds of  people.
Manner District fisheries Solidarity has conducted a child awareness program with the Church and submitted a letter to DS on the issues related to child and women abuse and drug abuse.

The campaign was organised by the National Women Federation based on National Fisheries Solidarity Movement to awake authorities and also to give a message to society on world Children's day.

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse

At Negombo - For Protection of Children from Abuse
Mathara District People on Protest
Mathara District People On Protest

Mother District People on protest

Ampara District Protest on world Children's Day

Ampara District Protest on world Children's Day

Ampara District Protest on world Children's Day

Manner District Campaign

Manner District Campaign

Manner District Campaign
 captionManner District Campaign

Submitting of the letter to DS in Mannar District
Galle District campaign at Rajgama

Galle District campaign at Rajgama

Galle District campaign at Rajgama

Galle District campaign at Rajgama

Galle District campaign at Rajgama

Galle District campaign at Rajgama

A Protest against Indian Trawling in Sri Lankan Waters

Written By NAFSO on Friday, September 25, 2015 | 11:16:00 AM

A Protest has been carried out by the Jaffna fishers on 23rd of September 2015 against invasion of the resources in North Sea of Sri Lanka by Indian fishers and against the government of Sri Lanka since it do not act to protect the resources. 
Since the end of war in Sri Lanka, Indian fishers who operate destructive bottom trawling method to catch fish roaming in Sri Lankan waters and destroying the resources. 

Sri Lankan fishers in North have protested against this unlawful and destructive fishers in several times since 2009 and they have been to India to discuss with fisher communities and with the government authorities. 
Both governments are acting as "there is no problem at all" and let Sri Lankan poor fishers to suffer.  
More than 1000 people were participated in Jaffna peninsula. organize by Northern Province Fisher People Unity, Rural fisheries federation, Fisheries cooperative society Union and District fisheries solidarity movement.

Panama people discuss about the future move

Written By NAFSO on Thursday, September 24, 2015 | 9:41:00 PM

After about two months panama victims of land grabbing have visited the district secretary of Ampara district and conducted a discussion based on the official letter revived from presidential secretariat. 
Secretary to the president has given a letter to release the land of ragamvila and shasthrawala as first phase of releasing the grabbed lands unlawful way. 
People asked to release the lands as requested by presidential secretariat by DS of Ampara district Mr. Wanigasooriya On 23rd September. 
After meeting with DS, some of villagers visited to police station to find out what are the new development in investigation of the set firing to their houses on 17th July 2010. 
Me. Rajan, coordinator of Praja Abhilashi network was also met the victimized Panama people prior to meet DS and conduct a discussion on situation of land issue and updates in legal activities caring out on grabbed lands. 

Some 30,000 displaced Tamil still suffering

Written By NAFSO on Thursday, September 10, 2015 | 1:54:00 PM

by Melani Manel Perera
The National Fisheries Solidarity (NAFSO) movement presents a report completed last month, highlighting the plight of internally displaced people as well as refugees abroad. About 55 per cent of those still living in camps lack electricity, and 70 per cent have not water. Lavatories are inadequate and off-limits at night. For NAFSO president, Tamil need to lead a “life of dignity”.

Colombo (AsiaNews) – The National Fisheries Solidarity (NAFSO) movement organised a roundtable in the Sri Lankan capital of Colombo on Monday to discuss a report. Titled Let them come back to their places of origin in and with dignity, the study centred on the situation in 38 refugee camps in 27 villages.
Completed in late August, the report indicated that about 35 camps have existed since the 1990s, but five of them were hitherto unknown. Some 1,536 families or 5,836 people live in the camps. However, about 30,000 people are still internally displaced on the Jaffna Peninsula. The meeting sought to take stock of the situation.
The island nation saw a brutal civil war between the government and Tamil Tigers (Liberation Tigers of Tamil Eelam, or LTTE). The latter sought to create an independent state in the predominantly Tamil provinces of northern and eastern Sri Lanka.
These areas bore the brunt of 30 years of bloody civil war between the army and rebels, and the civil war ended with the rebels’ defeat.
Since then, the gap has grown between impoverished north-eastern regions, where most Tamil live, including some 200,000 refugees, and the mostly Sinhala south, which is rich and prosperous.
Most Tamil still vividly remember the violence they had to endure. For the first time this year, the newly elected president Maithripala Sirisena allowed therelatives of the victims to remember their loved ones who died.
Even though Sirisena recently returned some plots of land to 300 displaced families, many people remain very poor.
NAFSO coordinator Lavina Hasanthi told AsiaNews that the overall picture of the situation is still incomplete because many displaced people are not registered at refugee camps. Some in fact prefer to live in makeshift tents near their original home.
NAFSO’s report was handed over to three government officials, namely Eastern Province Chief Minister's Coordinating Secretary A. Abeywickrama, Additional Jaffna District Secretary Mr Muralitharan and Ministry of National Dialogue Secretary Ms Bhanu.
The 35-page document also notes that thousands of Tamil are refugees abroad, especially in the Indian state of Tamil Nadu. Some have also applied for asylum in Western countries.
NAFSO president Herman Kumara, a special guest from the World Forum for Fisher People (WFFP), told AsiaNews that 55 per cent of those living in the camps do not have electricity, and 70 per cent do not have access to clean water. He also noted that lavatories are almost non-existent, and where they do exist, they are off-limits at night.

"As human rights activists, all we can hope for is for our fellow citizens to lead a life based on dignity,” he said. “We anticipate that displaced people will go back to a normal life, on their land, revive their culture so as to contribute to the country’s economy. Above all, we want to see them get out of their currently subhuman conditions and start to lead a decent living.”
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