The underlying rationale of the work of the Programme is to ensure that civil and political rights, formally established in national and international law, are respected in fact and able to be enjoyed by average citizens in Sri Lanka. The research has a specific relationship to ‘law in practice’ and legal advocacy in order to enable an infusion of practical legal knowledge into the research with the objective of building bridges between academic research and practical initiatives/developments in the legal system. The Programme attempts to engage particularly in practical advocacy with people at the grass roots level on whom the violation of rights impacts the most.
The focal point of the work strives to ensure the implementation of the rule of law, improve domestic institutions of justice and foster respect for the constitutional process of governance.
A. Torture, Policing and Rights Concerns
The RESIST (Reducing Effects and Incidences of Torture) Program resulted in a 60 page Report titled “Sri Lanka- the Right Not to be Tortured;: A Critical Analysis of the Judicial Response” which comprehensively discusses over fifty judgments of the Supreme Court delivered between 2000-2006 in terms of its jurisdiction under Article 126 of the Constitution in relevance to violations of Article 11. The Study also examines the judicial response of the High Court to prosecutions under the 1994 Anti-Torture Act as well as the prosecutorial and investigative processes relevant thereto.
The methodology adopted involved comprehensive analysis of the relevant judgments/bench orders/ petitions pertinent to applications filed under Article 11 as well as analysis of the trial proceedings/decisions of the High Court relevant to prosecutions in terms of the CAT Act. A summary of the research is as follows:
The Introduction commences with a brief description of the prohibition of torture in international law and national law. Part One of the Study examines relevant judgments of the Sri Lankan Supreme Court between the years 2000 and 2006. It must be noted that, for the purpose of this Study, judgments delivered by the Court prior to 2000 have not been specifically examined though case law in this respect is examined as part of the contextual analysis. The analysis particularly emphasises deficiencies in prevalent constitutional provisions including the absence of the right to life in the Constitution, the prescribing of time limits for FR applications, absence of provision for judicial review of enacted laws and strict rules of standing at the Supreme Court level.
Part Two of the Study looks at judgments of the High Court and examines judicial responses to the use of the criminal law to prosecute torture offenders in custodial uniform, deterrent sentences imposed in terms of the act, lapses on the part of the prosecutorial and investigative authorities and so on. Given the difficulties encountered in obtaining the relevant documentation, this segment of the Study is confined to examining six decisions of the High Court, three decisions pertaining to convictions and three decisions pertaining to acquittals.
Part Three examines the use of international human rights mechanisms, particularly in terms of the Optional Protocol procedure under the International Covenant on Civil and Political Rights (ICCPR), relevant Communications of Views forwarded by the United Nations Human Rights Committee in terms of Sri Lanka’s obligation to prevent torture/cruel, inhuman or degrading treatment and the lack of implementation of these Views.
The research interrogates why practices of torture/cruel, inhuman or degrading treatment are yet so commonly resorted to in Sri Lanka despite stringent constitutional and statutory safeguards. Some lacunae are easily identifiable. The fact that enforcement authorities, (i.e. the police), do not take judgments of the Court seriously is an identified problem. Disciplinary action is not imposed in regard to individual police officers found culpable of human rights violations. Oversight agencies such as the Human Rights Commission of Sri Lanka and the National Police Commission have been demonstrably ineffective in checking this trend. In recent times, their independence and integrity have been seriously compromised as a result of appointments of their members being made by the President without the constitutionally mandated approval by the Constitutional Council as stipulated in the 17th Amendment to the Constitution.
In a context where heightened conflict has made grave human rights violations a common occurrence, the absence of effective deterrents in regard to the right to freedom against torture is deeply worrying. It is our hope that this Study would forge a common consensus as to the extent of this problem and lead to new initiatives in this regard.
Advocacy activities were also engaged in with relation to the work. These included conducting extensive discussions with grassroots networks, state law officers, police officers and officers of monitoring bodies such as the National Police Commission to ascertain the most effective methods of advocacy in a climate where torture, cruel, inhuman and degrading treatment and other grievous rights violations have become generally accepted due to resumed conflict. Four provincial consultations were held in the Southern Province, the Uva Province, the Eastern Province and the North-Central Province.
B. General Freedoms of Life/Liberty, Expression and Information
Research, advocacy and networking with regional civil society networks on sharing information and best practices on protection of life and liberty rights as well as monitoring the working of democratic institutions such as the judiciary is a crucial part of the Programme’s work. Collaboration, information sharing and monitoring of key concerns in regard to endemic patterns of torture and encouraging better policing, the continuing need for a Freedom of Information law and a Contempt of Court law is evidenced particularly with regional networks such as the Asian Human Rights Commission, Hong Kong and the Commonwealth Human Rights Network, New Delhi as well as with international networks such as the Geneva based International Commission of Jurists.
Rigorous monitoring of the National Human Rights Commission of Sri Lanka (HRC) is also a particularly important focal point with specific collaboration of the Asian Forum for Human Rights and Development (FORUM-ASIA) resulting in critical reports being filed in Geneva with a view to assisting the monitoring of the HRC by the International Coordinating Committee (ICC) of National Human Rights Institutions and during the annual meetings of the Asia Pacific Forum (APF) of Human Rights Institutions. The reports are included in the official documentation of the APF sessions and comprise part of FORUM-ASIA’S annual reports in this regard.
In addition, the Programme engages in research and advocacy on the functioning and impact of past Presidential Commissions of Inquiry into Extra Judicial Executions and Enforced Disappearances as well as prosecutions into grave human rights violations. Scrutiny of the prosecutorial role in the context of Sri Lanka’s legal system and the overriding need for practically effective victim protection measures forms a vital part of this work.
The Programme also provides briefing papers upon requests being made for the same, regarding the need to implement the 17th Amendment to the Constitution including the revitalisation of the Constitutional Council and restoring the constitutionality of the appointments process to the commissions on the police, the judiciary as well as the National Human Rights Commission.
C. Sri Lanka’s Discriminatory Land Laws
Commencing in mid 2007, the research work funded by the Asian Development Bank encompasses critical analysis of the legal framework relating to property and land rights in Sri Lanka from the standpoint of gender equality as well as the collection of empirical data in this regard. This project envisages the formation of a coherent and comprehensive body of recommendations in respect of and amendments to the identified laws. A 75+ research document has been compiled with emphasis on national laws, provincial laws as well as relevant regulations. Currently, empirical data is being gathered for the purposes of the Study through a quantitative study as well as by focus group discussions and in-depth interviews in the South, North-Central , East, Central and Western parts of the country.
Statutes particularly examined in this context include the Land Grants (Special Provisions) Act, No 43 of 1979, the State Lands Ordinance No 8 of 1947, the Land Resumption Ordinance No 4 of 1887, the Requisitioning of Lands Act No 333 of 1950, the State Lands (Recovery of Possession) Act No 7 of 1979, the State Lands Encroachments Ordinance No 12 of 1840, the Prescription Ordinance No 22 of 1871, the State Land Marks Ordinance No. 9 of 1909, the Definition of Boundaries No. 1 of 1844 (as amended), the State Land (Claims) Ordinance No. 21 of 1931, the Nindagama Lands Act, No. 30 of 1968, the Land Settlement Ordinance No. 20 of 1931 (as amended) and the Land Reform Law No. 1 of 1972 (as amended).
D. Good Governance Study Programme
These training programs are a continuation of work engaged in by the Trust for the past several years on ‘Law and Good Governance for the Grama Niladaris (GN) throughout Sri Lanka. The lack of information on the part of GNs in regard to the basic legal framework as well as their own rights and duties is clearly evident. At the level of central government, there is little attention paid to village level governance and at another level, most administrators are widely known to make basic mistakes regarding their powers, existing laws and administrative procedures. This is made worse by the current deterioration of standards of governance and corruption prevalent in government administration. The trainings attempt to meet some of these fundamental problems at the level of local administration. The Programme compiled and published the first ever booklet on the “Statutory Rights and Duties of Grama Nildharis’ which was purchased by GNs themselves as well as by the relevant ministries and government departments.
The segment of the work in recent times concentrated on training programmes in the Anuradhapura and Polonnaruwa Districts. In total, programmes have been conducted within 13 districts, reaching out to an approximate total of 16200 GNs.
E. Observing and Participating in the Presidential Commission of Inquiry to Inquire into Serious Human Rights Violations
Responding to requests made by witnesses and family members of victims appearing before the Commission of Inquiry, the Civil and Political Rights Programme, in collaboration with the Human Rights in Conflict Programme assisted the Commission in respect of its public inquiries. These two Programmes applied for and obtained standing to assist the Commission in this respect on March 24th 2008. The CPR programme published in September 2010, a reference guide to past Commissions of Inquiry in Sri Lanka comprising a tabulation of the contents and recommendations of these bodies with notes indicating the implementation or non-implementation of the same.Responding to requests made by witnesses and family members of victims appearing before the Commission of Inquiry, the Civil and Political Rights Programme, in collaboration with the Human Rights in Conflict Programme assisted the Commission in respect of its public inquiries. These two Programmes applied for and obtained standing to assist the Commission in this respect on March 24th 2008. The CPR programme published in September 2010, a reference guide to past Commissions of Inquiry in Sri Lanka comprising a tabulation of the contents and recommendations of these bodies with notes indicating the implementation or non-implementation of the same.
Significant publications of the CPR Programme in recent years include
• Habeas Corpus in Sri Lanka; Theory and Practice of the Great Writ in Extraordinary Times, January 2011, co-authored by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne
• Is Land for Men? Critiquing Discriminatory Laws, Regulations and Practices Relating to State Land in Sri Lanka, September 2011, co-authored by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne
• A Legacy to Remember: Sri Lanka's Commissions of Inquiry, 1963-2002, A Reference Guide to Commission Reports with a Tabulated List of Recommendations, September 2010, edited by Kishali Pinto-Jayawardena
• Sri Lanka – the Right not to be Tortured; A Critical Analysis of the Judicial Response,Colombo, June 2008 co-authored by Kishali
Pinto-Jayawardena and Lisa Kois
• Legal Rights and Duties of Grama Niladharis in Sri Lanka, March 2006, compiled by the CPR Programme team