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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.

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