This Double Issue of the Review encompasses a wide range of papers, articles and reports all dealing with the manifest dilemmas and the manifold problems of protection of rights in Sri Lanka today. We have published as an appropriate commencement to these discussions, the latest Communication of Views by the United Nations Human Rights Committee in terms of the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). In Raththinde Katupollande Gedara Dingiri Banda vs Sri Lanka, the Committee expressed its concerns regarding the continuing question of impunity for those who commit abusive acts under cover of office.

In this instance, the victim (himself, a military officer) was abused by his senior colleagues ostensibly during a ‘ragging’ ceremony. While this incident itself may have been relatively nondescript, the extent of the injuries inflicted had been grave, thus necessitating in him having to leave military service. Thereafter, his complaints remained unaddressed; a military tribunal (at which the victim was not allowed to present evidence) merely recommending forfeiture of seniority in regard to the two senior officers who had perpetrated the abuse. Indeed, the two perpetrators had later been promoted. Cases filed by the victim at all stages of the legal process, namely the Magistrate’s Court, the District Court and the Supreme Court were to no avail. In a development of serious concern, the victim alleged that the fundamental rights case that he had filed in the Supreme Court after seeking legal assistance from the Bar Association of Sri Lanka, had, in fact, been settled against his will.

Considering these facts, the Committee rejected the State party’s argument that the two perpetrators had already been tried and punished by a military tribunal and could not be tried again. Buttressing this view, the Committee observed that this military tribunal had no jurisdiction to try anyone for acts of torture, that the victim had not been represented and that the punishment given to the two perpetrators was only a temporary forfeiture of seniority despite the serious injuries caused to the victim. Moreover, none of the legal proceedings had resulted in effective relief being given to him. The settled rule of general international law that all branches of government, including the judicial branch, may be in a position to engage the responsibility of the State party was reiterated and a violation of ICCPR Article 2(3) read with Article 7 was found.

This Communication is significant in several respects. First, it is relevant in the context of the question of laws delays and the effectiveness of the legal remedies proposed. Secondly, the spurious use of the concept of double jeopardy to justify as to why a prosecution was not launched under the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 well illustrates the tortuously circumlocutory arguments that Sri Lanka’s prosecution agencies resort to in attempting to deny justice to victims. The three fold failure of the investigative, prosecutorial and legal process in this country in many cases of this nature must remain of serious concern to persons of all ethnicities in Sri Lanka, Sinhalese, Tamils, Muslims and others as the case may be.

From another perspective, the hypocrisy of the Sri Lankan State in continuing to make their submissions in Individual Communications before the United Nations Human Rights Committee, despite the fact that the 2006 judgment of the Supreme Court in the Sinharasa case (see LST Review, Volume 17, September and October Joint Issue – 227 and 228) has rendered such Communications to be of no force or effect within the country, is palpable. Ideally, the Government should have passed domestic legislation and engaged in other measures necessary in order to overcome the difficulties posed by the Sinharasa case which declared that the Presidential act of accession to the Protocol was an unconstitutional exercise of legislative power as well as an equally unconstitutional conferment of judicial power on the Committee. In the alternative, there should have been an open acknowledgement of the inability to do so instead of recourse to dishonest measures such as the recently passed so-called “ICCPR Act’ which only reproduced a few selected ICCPR rights.

The second and third articles that the Review publishes, discusses the functioning of the Presidential Commission of Inquiry to Investigate and Inquire into Allegations of Serious Human Rights Violations established by the Government of Sri Lanka on November 03, 2006. In timely analysis given the expiry of a full one year since the Commission was established, two papers by Howard Varney and Dulani Kulasinghe examine the deficiencies in its functioning. In particular, it is recommended by the first writer that the Commission should not solely preoccupy itself with investigating the identified crimes but also ascertain as to why these crimes, together with the other thousands of similar cases have not been solved by the law enforcement or prosecutorial agencies. This eminently sensible recommendation may however be prevented by a new condition attaching to the extension of the mandate of this Commission in November 2007 which states that ‘the Commission is not required in any way to consider, scrutinize, monitor, investigate or inquire into the conduct of the Attorney General or any of his officers with regards to or in relation to any investigation already conducted into the relevant incidents.’

While this was not a condition attaching to the original mandate of the Commission, its inclusion at this stage is only indicative of the unfortunate defensiveness with which the Department of the Attorney General views its own actions in these cases and indeed, is a considerable limitation on the authority of the Commission. The fact that the Commissioners themselves appear to have consented, without protest, to this unwarranted narrowing of their authority detracts from the integrity of their involvement

Meanwhile, the explicit inclusion in the extended mandate that ‘the Commission could continue to obtain the assistance of officers of the Attorney General’s Department’ conflicts with the oft expressed concerns of the International Independent Group of Eminent Persons (IIGEP) that the involvement of the officers of the Attorney General amounts to a conflict of interest and that legal counsel assisting the Commission should be drawn from the independent bar. Given that the prosecutorial role in many of these cases is also an integral part of the process to be investigated, as stated above, this is an understandable - though now completely bypassed - concern.

We next publish an extract of a working document listing persons killed/disappeared during the period 1 January to 31 August 2007, released by the Conflict and Human Rights Programme of the Law and Society Trust in collaboration with the Free Media Movement and the Civil Monitoring Commission. The data, obtained from media monitoring and direct contact with field level activists, is revised and updated with errors made bona fide being corrected as new and credible information becomes available.

The Review also publishes a Discussion Paper by the International Commission of Jurists on an effective international human rights monitoring presence in Sri Lanka. The Paper is published in the interests of enabling informed public understanding as to the context in which such a call is made. However, ultimately it is the Sri Lankan people themselves who must address the gravity of the breakdown in domestic structures of accountability with all the collective strength that can be mustered. Constructive international interventions can only help in such internal efforts and cannot be urged in isolation. The extent of such breakdown in domestic structures of accountability is meanwhile further addressed in the next paper analyzing the performance of Sri Lanka’s Human Rights Commission submitted by the Trust as part of the documentation for the 12th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions (APF sessions) in Sydney, September 2007 as well as in the publication of concerns raised by the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Novak during a Mission Visit to Sri Lanka, 1st to 8th October 2007.

The final publication in this Issue pertains to a book review by Judge C.J. Weeramantry on ‘The Protection of Culture, Cultural Heritage and Cultural Property’ by Justice A. R. B. Amerasinghe.

Kishali Pinto-Jayawardena