Kishali Pinto Jayawardena

1. Introduction

At each historical juncture, the framers of Sri Lanka’s post independence constitutional documents suffered from a deep rooted distrust of giving practical effect to the rule of law and the idea of justice. The 1972 ‘autochthonous’ Constitution  subordinated the judiciary and only superficially embodied a Bill of Rights while declining to grant the Supreme Court, explicit jurisdiction over the determination of violations. Thereafter, the 1978 Constitution  entrenched the concept of the all powerful Executive President whose actions were virtually above the law, besides (in a most absurd paradox), omitting the right to life and inflicting a constitutional rights chapter with procedural restrictions that diminished the protection of those very rights. 

This deviously subversive rationale outlined each and every measure ostensibly agreed to in the name of constitutional democracy, whether it was the enactment of laws setting up to monitor abuse of human rights, curb police indiscipline or the implementation of a constitutional amendment meant to restore public confidence in the governance process. The familiar adage of ‘giving with one hand and taking with the other’ took on terrible meaning in the gradual but relentless destruction of Sri Lanka’s political, constitutional and legal systems.

From this core political objective of subversion of the rule of law, sprang a rabidly intolerant response to legitimate dissent; the constitutional documents of 1972 and 1978 were used to deny justice to both the majority Sinhalese and the minority Tamils and Muslims. The failure of the justice system and the breakdown of the ordinary law enforcement process impacted on all communities, resulting in the deaths, enforced disappearances, physical and mental torture of thousands during the past three decades.

Ominously, this phenomenon was manifested not only during active conflict but also in times of relatively normal functioning. The very foundations of the liberal democratic polity, such as protection of human rights, independence of the judiciary, a democratic electoral system and the concept of separation of powers were used as weapons to twist the constitutional process to suit political exigencies and to strike at the heart of the public’s understanding of the rule of law. 

However, in trying to analyse this problem, much effort has been expended on problems of constitutional theory and the niceties of one system as against another (viz; a parliamentary system as against a presidential system, a proportional representation electoral system as against a first-past-the-post electoral system or a unitary state as against a federal state). Such efforts are premised on the assumption that Sri Lanka’s democratic institutions are in proper working order and that what is required is merely to decide on suitable models of governance. 

This paper departs from the above premise in unequivocal terms; it reiterates the failure of the democratic process in a most profound sense and systematically dissects the centrality of the breakdown of the justice system within this context. The point, albeit controversial, is re-iterated; the ongoing conflict in the North/East is the effect rather than the cause of a destructively cyclic perpetuation of coercive violence.  Granted, the brutality of the Sri Lankan State has been practiced against minorities with the ultimate consequence of alienating them and abandoning them to the ferocious mercies of separatist forces that are not propelled by a liberation ideology but only by a thirst for totalitarian power.

Fact remains that such brutality has been practiced also against the majority community to devastating effect. The redressing of the brutal nature of the State must therefore be seen as a problem common to all ethnicities. This indeed is the approach that the Asian Human Rights Commission (AHRC) and its partner organizations in Sri Lanka have followed in their work. The theme of the failure of justice is pragmatically manifest in their campaigns and case studies.
 
The paper critically questions past thinking wherein the authority of the constitutional order has been situated primarily around the failure of constitutionalism to provide for the needs of ethnic minorities and to ensure the multi-ethnic character of the polity. While conceding the importance of these intertwining themes, it contends strongly that this struggle should have been centered round broader and primary questions of the failure of justice and of human rights in general and the failure of law enforcement in particular. In doing so, the paper re-iterates the following rationale;

A discourse on justice is separate from a discourse on politics. This does not mean that the two are unrelated – only that they are distinct. And for the discourse in justice to influence the political discourse in a country, thereby breaking its tautological nature, there must first exist something akin to a discourse on justice. However, sadly such a discourse is quite absent in Sri Lanka.

The limited approach taken, of focusing only on minority rights and the ‘ethnic conflict’, it is argued, has detracted from a more profound exploration of fundamental problems of protecting life and liberty confronting all Sri Lankans today. In direct relevance to the peace process for example, this has resulted in downplaying of the critical question of human rights protection for civilians consequent to the 2002 Oslo brokered ceasefire agreement with the putting into place of credible monitors rather than ‘political facilitators/mediators’  which deprived the entire exercise of that vital element of public ‘ownership’ and legitimacy.

The research does not focus exclusively on theory but instead, takes the ‘praxis’  approach by exploring the above premise through the diverse findings that have emerged from sustained and pro-active campaigns against the endemic prevalence of torture, carried out by  and associate organizations during the past several years. Informed and driven by the determination of the victims and grassroots activists, this has been a singularly successful approach to learning that has distinguished itself by reflecting felt needs of the people as opposed to arid theories.

2. The ‘schizophrenic’ Sri Lankan State and the Gradual Breakdown of the Rule of Law.

The assumption that traditional democratic legacies carry with them all the formulae for building equitable and just societies is common in South Asia. This rationale is underpinned not only by the perception that the state is the key arbiter in ensuring the rights of citizens but that its role is at once, both non-conflictual and benevolent. So also, (and as a matter of natural logic), are asserted to be the institutions that it constructs.

In the immediate post-colonial era, such naiveté was natural and perhaps necessary for the emergence of new national identities. The state was perceived as having certain essential responsibilities of defining territorial integrity, looking after the welfare of the people and enacting laws and regulations in order to maintain order and good government within the territory. It was thus that the state derived its legitimacy to speak on behalf of all its citizens against external influences, friendly or aggressive and justify the right to use force in order to safeguard its own existence. The notion that the state existed for the common good prevailed almost to the point of automatic acquiescence of all its actions. Belief in the normative power of constitutions was an essential part of this formidable authority. Inherited British traditions of parliamentary democracy asserted the power of transformative reform through constitutional institutions and constitutionalism as the ideal condition of democracy.

This was however, soon realised to be a misplaced faith. As communities fragmented, there began the search as to how best the state and institutions of the state could be reconstructed. But the subsequent discourse of correction continued to operate within the old parameters that defined the state as being central to any form of reform. Thus, the focus shifted to issues such as a justiciable bill of rights, an independent judiciary, a multi party system and competitive electoral processes. This shift was however accompanied by a sense of overwhelming despair arising from the failure of constitutions in many societies to uphold human rights or democratic values and the appalling disparity between constitutional theory and constitutional practices. The tension between these two was palpable.

Insofar as Sri Lanka is concerned, a number of instruments, both constitutional  and statutory  purport to protect the rights of its citizens. However, on the other hand, the State itself remains the chief violator of these rights either by way of commission or by omission. The Constitution has not become a living law and the aspiration of equality and equity based on social justice remains unrealised.

The modern Sri Lankan state therefore possesses a schizophrenic personality as far as the protection of human rights is concerned. It combines the ability to unleash violence and execute an internal war with a remarkably duplicitous capacity to superficially affirm commitment to the democratic process as the following analysis would make clear.

2.1. A Culture of Violence

Social and political violence encompassing a continuing war in the North and East and two youth insurrections has transfixed the country’s human development during the past three decades. Sri Lanka has a long record of violent conflicts. The youth rebellion of the Janatha Vimukthi Peramuna (JVP) in the seventies, methodically crushed by the then United Front Government, was only a foretaste of worse things to come.
With the entering of the opposition United National Party (UNP)  into government in 1977 and the centralization of powers in an elected Executive President, a new culture of political violence set in. Violence was practiced to systematically wipe out all opposition to the government. Not only did the UNP reorganise its trade unions to act as thugs to incite and carry out violence, certain politicians were allowed to have their own private armies and mobilize large crowds and mobs to wreak violence without impunity. Para military organisations set up during this period, supposedly to help the armed forces and police fight the Liberation Tigers of Tamil Eelam (LTTE) fighting for a separate state in the North/East, also expanded the UNP’s armed sphere of influence.

The violent politics of this era culminated in the re-emergence of the JVP in the late 1980’s. The JVP intended to capture state power and establish a socialist state, but was suppressed by the State in an equally violent fashion. The violence thus unleashed only subsided in 1991 after the leader of the JVP was arrested and summarily executed by the army. At this point of time, the ongoing ethnic conflict in the North-East lent a continuing brutal dimension to this pervasive violence and Sri Lanka ranked as having the second highest count of disappeared persons (an estimated 12,000) in the world, next to Iraq.

It was in this background that the 1994 general elections were held. The Peoples Alliance (PA) government came to power in 1994 on the promise of ushering in new political ethos in the country. But the resumption of the war against the LTTE and the defensiveness generated by a constant struggle to maintain a moral high ground against the “dushanaya” and ‘beeshanaya” (corrupt and violent) record of its predecessor, the UNP, quickly propelled the PA into a morass of its own making. In the background of much of the violent political apparatus still remaining intact as far as the JVP and the UNP were concerned, there was precedence and a certain seemingly legitimate space for PA politicians, to engage in political violence. This ‘politics of violence’ has continued thereafter with succeeding alliances of one or the other major parties capturing political power  

The law itself was commonly used as an instrument of repression. The Public Security Ordinance (PSO) No 25 of 1947 as amended and in the Prevention of Terrorism Act (PTA) of 1979 as amended have governed the country for the better part of the past decades and virtually replaced the ordinary penal laws and criminal procedure/evidence statutes.

These emergency laws gave wide powers of arrest and detention to the police and the armed forces. Other powers included the absence of minimum or any safeguards relating to conditions of detention, admissibility of police confessions to senior police officers and relaxing of the normal procedure in relation to deaths in custody in respect of inquests, postmortem examinations, disposal of bodies and judicial inquiry. The Criminal Procedure Code which required a suspect to be produced before a Magistrate within 24 hours of his arrest and the Evidence Ordinance which prohibited the making of confessions to police officers were completely overridden by the emergency laws. These laws were used to fight Tamil separatism in the country as well as control Sinhalese extremism.  Their abuse led to deaths, extra judicial killings and enforced disappearances in thousands and aggravated overall brutalisation of Sri Lankan society.

3. Failure to Question the Subversion of the Justice System and Defeat of Constitutional Oversight of the Governance Process

The inability, by a majority of domestic as well as international non-governmental organizations to view the failure of justice as underpinning human rights activism in Sri Lanka has had a direct impact on the perpetuation of a culture of violence. A specific feature of the pervasive breakdown of the rule of law in Sri Lanka is the problematic failure of the justice system to bring to book, the perpetrators who commit abuses, whether in times of ordinary law and order or in periods of emergency.

This failure of justice system is evident at all levels, from the highest to the lowest courts and deserves close scrutiny by virtue of the central theme in this paper; that the failure of the justice system has been a factor in the deterioration of constitutional governance, including proper law enforcement, resulting consequently in pervasive violence. In this context, the phrase ‘the justice system’ infers much more than theoretical judicial pronouncements; rather, it is used to span the entire gamut of the legal system from prosecutions to decisions and thence to practical implementation of those decisions. Safeguarding of the independence of the judiciary as well as preservation of the credibility of the prosecutorial system is exceedingly vital to this discussion.

3.1. Subordination of the Rule of Law to ‘Rule by Politics’

The gradual politicization of Sri Lanka’s judiciary and the subordination of the rule of law to ‘rule by politics,’ referred to in the introduction to this paper, are important as it frames this analysis. The absolute inability of ‘civil society’ non-governmental organizations based in Colombo to mount a vigorous campaign regarding the blatant politicization of Sri Lanka’s Supreme Court from 1999 onwards was a particular consequence of the inability to posit the failure of justice as central to their work and, in some measure also, pointed to the political choices that these organizations made.

Some context is necessary to this critique. The question of the independence of Sri Lanka’s judiciary is not a novel dilemma that has arisen in recent times. Soon after independence, attempts were made by the political establishment to reduce its independence but met with valiant resistance by the judges. When the separation of powers articulated by the Independence Constitution was sought to be overset by legislation attempting to give the Minister of Justice authority in the appointment of judicial officers, the Supreme Court responded by declaring the legislation invalid.  Further attempts to fetter the independence of the judiciary were also outlawed.  The Court was, in these early stages, conscious of the need to safeguard the rights of the minorities. 

Predictable political outrage at this perceived flouting of its authority resulted in the sweeping aside of the Independence Constitution by the 1972 constitutional document. The subordination of the judiciary was one immediate consequence thereof.  The 1972 Constitution abolished judicial review, established a Constitutional Court with the limited power to scrutinize bills, and this, too, in 24 hours when the bill was certified as being urgent in the national interest and allowed the declaration of a state of emergency to be passed without a debate. Fundamental Rights were included in the Constitution but made impotent by open ended restrictions and no specific enforcement procedure. 

The change in political leadership brought about the current second Republican Constitution in 1978, which theoretically protected the role of the Supreme Court as the highest and final superior court. The Court was given special jurisdiction in respect of election petitions, appeals, constitutional matters, fundamental rights (now made justiciable) and breach of the privileges of Parliament. The appointment of judges of the superior courts was by an elected President “by warrant under his hand.”  In practice however, the spirit of authoritarian disregard for the independence of the judiciary continued. A constitutional clause which specified that all judges of the appellate courts shall, on the commencement of the new Constitution, cease to hold office was soon used by the President to radically “reconstitute” the higher courts. 

Police officers found responsible for the violation of fundamental rights were not only promoted, but the damages and costs were paid from the Government exchequer. Procedural difficulties in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal and refusing entry to judges who reported for work. Following unpopular decisions, judges’ houses were stoned and vulgar abuse was shouted at them by thugs. 

In the wake of the sustained political barrage, decreased efforts by the judiciary to protect the rights of the people was not surprising. In 1982, when the UNP government flouted honoured electoral traditions and substituted a referendum for the general election that was then due, the Supreme Court upheld the decision of the Government. In the subsequent Thirteenth Amendment case, the Court again refused to engage in a debate on the substantive merits and demerits of devolution while approving the amendments on the technical basis that they did not violate the unitary nature of the state.  

From about the 1990’s however, judicial restraint of politicians, state agents and particularly officers in custodial authority such as police officers and prisons officers was far more substantive. This was in part due to a widespread public acknowledgement that the abuses of the past could not be tolerated further and part due to the efforts of some liberal judges on the Bench at that time. Working within the limited confines of a constitutional document that did not permit public interest litigation,  did not allow challenge of legislative acts,  did not allow judicial review of even unconstitutional laws if they were enacted before 1978  and did not include the right to life,  the judiciary did as much as it could. Importantly, the vicarious liability of officers in authority who did not intervene when their subordinates violate rights was specifically affirmed.  

Insofar as abuses of power under emergency was concerned, the Supreme Court’s  response was far more sensitive than in the past; it relaxed procedural rules that prescribed strict compliance with the manner in which a petition must be filed in court and thus allowed hundreds of persons detained under emergency to file fundamental rights petitions.  The power of the defence authorities to arrest and detain using emergency regulations and provisions of the PTA was also restrained and the Court went on to disregard an ouster clause in the Public Security Ordinance (under which emergency regulations are issued) to strike down the validity of a regulation itself.

This judicial ‘activism’ resulted in a hostile reaction from the political regime; the Supreme Court and those perceived to be ‘liberal’ judges came under scathing criticism from government ministers and indeed, then President Chandrika Kumaratunge herself. In 1999, with the appointment of Chief Justice S.N Silva who had close personal connections to President Kumaratunge, the Court became characterized not only by a withdrawal in articulating restraint on government actions but indeed, by a positive upholding of powers of the government against citizens and by distinct arbitrariness in its functioning.  Benches were constituted by the Chief Justice without any consideration for seniority,  but only with a view to ‘packing’ the bench with favourites  who would be amenable to whatever decision that was desired by the political establishment. The flood of fundamental rights applications progressively decreased;  whatever isolated ‘rights friendly’ judgments that were delivered awarded only small amounts of compensation. Settlements in fundamental rights cases were evidenced by judicial coercion of lawyers and/or petitioners.

The Court declared itself not bound by views of monitoring bodies established under international human rights treaties entered into by the executive,  thus giving the formal stamp to an informal process whereby, for years, the Government had been ignoring the Views of the Human Rights Committee. 

Public confidence in the ability of judges to act as a last measure against government authoritarianism has decreased. All this took place without significant protest from the Colombo based non-governmental community, excluding a few seminars held by one or two organizations.

At the level of the lower courts, the capacity to function independently from government was predictably affected. Transfers, disciplinary control and dismissal of lower court judges which are handled by the Judicial Services Commission (JSC) were made at the whim and fancy of the JSC,  most often at the nod of the Chief Justice. The negative impact that this had on the credibility and internal discipline of the judicial service is incalculable. 

3.2. Failure of Civilian Oversight Mechanisms and Constitutional Governance

Any effort to remedy a politically influenced approach to governance has had a short lifespan in Sri Lanka and/or has been thoroughly ineffective. The collective fate that befell two important commissions; the Bribery and Corruption Commission and the National Human Rights Commission evidenced this in no uncertain terms. The first was set up by a law unanimously passed in Parliament in 1994 , however it has been wholly ineffective, holding only insignificant and lower ranking public officials in its net while stupendous frauds and corrupt acts by heads of institutions and politicians have been bypassed. During long periods of its existence, it has been almost non-functional due to its infiltration by political elements, the infighting of its officials and efforts by successive governments to use it for their own political ends.

The National Human Rights Commission (NHRC),  on the other hand, was established through a law that was significantly flawed in many respects; it allows the body to engage only in conciliation and mediation with the end result that its directions are substantively ignored by not only the police hierarchy but also other government departments and officials,  its members are not stipulated to be full time, thus resulting in their giving only part time commitment to the work, Section 31 of the Act confers powers on “the Minister” to make regulations regarding implementation, including conducting investigations  and the Commission is not empowered to approach courts directly as petitioners in instances of grave human rights violations or even refer such questions to the appropriate court.

Though some Commission officers have been engaged in useful work in, at least documenting human rights violations particularly from the conflict areas and in bringing their persuasive efforts to bear on illegal arrests and detentions, the efficacy of the body as a whole has never been great due to the inherent limitations in its mandate. Specific deficiencies in its functioning will be highlighted in the course of consideration of the particular cases forming part of campaigns as discussed below.

The lack of legitimacy in the NHRC has been further aggravated in recent times by the unconstitutional nature of the appointments of its currently sitting members, who have been appointed by Presidential fiat ignoring a specific constitutional amendment which specified that the appointments be approved by a 10-member Constitutional Council (CC).     The 17th Amendment also established two new monitoring bodies; namely the Elections Commission  and the National Police Commission (NPC). The CC was, in fact, in existence only for a relatively short period, from March 2002 to March 2005.   The terms of office of its six appointed members expired in March 2005. But the vacancies arising therein were not filled, which resulted in the lapsing of the CC itself.

The incumbent President, Mahinda Rajapakse, then made his own appointments to the commissions, including the NHRC and NPC, predominating with his supporters and personal friends. At the time of writing this paper, the unconstitutionally appointed Commissions remain. Though a Parliamentary Select Committee has been appointed to examine as how the 17th Amendment may be ‘rectified’ in its substance, this Committee has been sitting for the past many months with no visible result.

The constitutional ‘experiment’ of the 17th Amendment illustrates the huge resistance that is manifested from the political establishment in regard to any attempts to de-politicise the governance process. Early on, the relatively feeble attempts of the National Police Commission (NPC) to discipline the police and restore the service to some measure of independent functioning met with blatant antagonism from politicians. Frontline ministers remarked that the ‘independence of the NPC’ was not needed and maintained amazingly that the Inspector General of Police (IGP) should be involved in the decision making processes of the NPC. Public hostility was evidenced between the IGP and the NPC where the former considered that the creation of the NPC had imposed an unwarranted fetter on his powers.

The response from the non-governmental community in regard to the political subversion of the constitutional process was again muted. Though some protests were evidenced at the start, (perhaps to an extent that was more than at other times, including the refusal of some former members of the NHRC to be re-appointed on the basis that this would be conforming to an unconstitutional process), these protests did not gather momentum as a collectively outraged reaction and were, moreover, confined only to that time at which the unconstitutional appointments took place.

4. Exposing the Failure of the Rule of Law: A Practical Analysis of the Campaigns of and its Partners

The approach followed in this instance was a full frontal critique of the justice system, focused on a plethora of cases which took the victims through the whole process by providing them not only with legal help but also physical protection and counseling in order to provide a conducive environment for their rehabilitation. A significant factor was that these cases were from parts of the country not affected by the war. This was a deliberate choice  in order to examine the pervasive nature of the problem in a manner that de-links it from the conflict.

Two positive consequences could be inferred from the outset as a result of these campaigns. In the first instance, the ‘victims’ of torture became transformed from the ‘powerless’ to the ‘powerful’ purely by articulating their grievances in a collective manner. This process became instructive as a best practice example in regard to activist interventions. Secondly, a normally unresponsive media became part of the campaign, engaging in the daily reporting of torture.

Torture by the police is now almost daily reported in newspapers, television, radio and other media. Public actions have been held against torturers. Heavy pressure has been placed upon defective state institutions. The judiciary is under attack for its failure to deal effectively with the problem.

Some specific facets of this phenomenon will be examined now. While the case studies referred to in this regard are those engaged in by and its partners, principles and perspectives emanating from case law of the Supreme Court and High Court will also be adverted to, where necessary.

4.1. The Endemic Nature of the Problem of Police Abuse

The vast majority of custodial deaths in Sri Lanka are caused not by rogue police but by ordinary officers taking part in an established routine.
Philip Alston, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions.

The ‘safe’ assumption harboured by most Sri Lankans that the practice of torture remains confined to a particular segment of the societal undesirables; terrorists or hard core criminals as the case may be is now comprehensively debunked to all intents and purposes. Instead, police brutality has been practiced against diverse individuals; a labourer assaulted with batons and sticks while in army detention  the cleaner of a van assaulted after being blindfolded  an attorney-at-law pulled out of his car and assaulted another attorney-at-law who was a bystander at a protest demonstration (and not a participant) shot at close range  and an alleged army deserter tortured to the extent that he died in police custody.

However, as the case studies engaged in by indicates, torture is most evidenced against the poor and the marginalized; the most gruesome torture could be practiced against a teenager accused of stealing a bunch of bananas or some such petty theft. The actual criminals and the underworld characters are allowed to escape with the nexus between senior/junior police officials/politicians and the underworld linchpins being too strong to allow their apprehension.

As reflected in the observation by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions above, the studies also expose the fact that torture is not resorted to by a few ‘rogue’ policemen but is widespread due to many factors; the lack of good investigative training, public pressure to apprehend suspects and the general feeling that torture is not a condemned practice but is implicitly allowed and even expressly ordered by senior police officials despite laws and regulations prescribing otherwise.

One specific feature that emerges from these case studies is the brutality manifested in use of torture. In one case taken up by  Koralaliyanage Palitha Tissa Kumara from Halawala, Mathugama, was a respected local artisan of that area, engaged in painting and carvings for the past thirteen years, for which he had been awarded a gold medal by the Hotels Corporation as well as certificates from the Housing Development Authority and the National Apprentice Board. This thirty one year old father of two sons had been returning home from the southern city of Galle where had had undertaken carving work in early February 2004, when he was suddenly arrested by the Wellipenna Police simply because he had given food to a person who allegedly committed some serious crimes.

After his arrest, Tissa Kumara was subjected to severe assault by a sub-inspector attached to the Wellipenna police station. Thereafter, with extraordinary brutality, that same police officer had brought a tuberculosis patient who was in the same police station, to spit into Tissa Kumara’s mouth, telling him that he too would die within two months of the same disease. After that, he was put into the remand prison on fabricated charges of possession of a grenade and for robbery. After fears of being inflicted with tuberculosis arose following a severe cough and blood in his saliva, Tissa Kumara was put in a solitary cell. Food was passed through to him by a narrow opening in the door as the prison authorities were nervous of contamination.

His wife made frenzied appeals to the various monitoring bodies in Colombo, including the National Human Rights Commission (NPC) and the National Police Commission (NPC) but her husband continued to lack proper medical treatment. Tissa Kumara’s case was distinguishable in its extreme perversion from the ordinary cases of police brutality being reported.

4.2. Militarisation of Law-Enforcement Agencies

The failure of the law enforcement process has been a persistent and central feature of the failure of the justice system in Sri Lanka. The precise extent of corruption within the police ranks, police brutality, lack of investigative skills, inefficient and time consuming procedures in dealing with complaints of torture,  and the virtual militarization of the police service accustomed to using emergency powers for long decades is clear.

 The study refers to two discernible patterns of torture, firstly where torture is resorted to for interrogation purposes and secondly where it is apparent as a pure abuse of power.  Into the first category of cases falls the denial of all of the commonly accepted rights available under the normal criminal procedure laws  such as the right to be given reasons for the arrest and the right to be speedily brought before a magistrate.

 In this regard, the trauma of persons mistakenly arrested by the police and tortured in the belief that they are criminals, is common  as is the arbitrary arresting and torturing of individuals possessed of a criminal record purely as a convenient cover for crimes lacking a suspect. Palitha Tissa Kumara’s case (detailed before) and the case of Lalith Rajapakse who was severely beaten on 19 and 20 April 2002 by officers from the Kandana Police Station and remained in a coma for 3 weeks  are two latter examples. Numerous judgments of the Supreme Court have held that even a hardened criminal cannot be tortured with impunity. In the Wewelage Rani Fernando Case, (where it was contended that the deceased had stolen two bunches of bananas), the court observed that this allegation of theft should not have detracted from the duty to afford to the deceased, the protection of his constitutional rights of personal liberty. Thus;

…[T]he petitioner may be a hard-core criminal whose tribe deserve no sympathy but if constitutional guarantees are to have any meaning or value in our democratic set-up, it is essential that he be not denied the protection guaranteed by our Constitution.

However, these judgments have not had any effect on the law enforcement machinery.

The Madiliyawatte Jayalathge Thilakarathna Jayalath case in which the first conviction under the Anti-Torture Act, the absence of due process at all stages of the investigative process was well illustrated. The case involved the alleged theft of four gems from the office of a gem dealer who alleged that the victim, a business acquaintance and a broker, was responsible. The victim stoutly denied that he had stolen the gems but was threatened by the gem dealer that, if the gems were not handed over, he would get the police to assault him. Some time later, while traveling to Colombo in the bus, the victim was arrested and taken to the Wellawatte police station where he was mercilessly assaulted with a plumbing pipe by the accused police officer, then attached to the crime division as an acting officer in charge. Thereafter, he was kept in the police station for two days. It was only after the members of his family had protested asking why he was not produced before court, that he was taken before a magistrate. He did not make any complaint of assault to the magistrate or the officer in charge of the Wellawatte police station. When asked why, he said that there had been ‘no point’ in doing so. The medical evidence showed injuries on the victim, which had been caused by a blunt weapon, including the fracture of his hand.

The accused police officer contended that the victim had been arrested on suspicion of being involved in the theft of gems and had hurt himself attempting to run away at the time of arrest. Somewhat more interestingly, it also turned out that the gem dealer, who had lodged the complaint, later found the gems and had informed the police that his allegations against the victim had been unfounded. In assessing these facts, the Colombo High Court  determined that the prosecution had established beyond reasonable doubt that the accused had assaulted the victim in order to obtain a confession from him, which he had done in his official capacity as a police officer and therefore, a public officer. The absconding accused was convicted to the minimum seven years rigorous imprisonment (RI) and payment of a fine of Rs. 10,000, in default of which, a further two years of RI was ordered.

The case illustrated the various points at which the system fails to work in Sri Lanka. At the most fundamental level, immediate deficiencies in the law enforcement process are apparent where basic investigation skills and training is replaced by brute force on the part of not only junior but also senior police officials. This is buttressed by the impunity that law enforcement officers can claim for their actions, a continuing legacy of extraordinary emergency laws which, at one point, gave them virtual powers of life and death. The element of supervision that should normally be operative at the chain of command is also rendered completely nugatory by this breakdown in the systems of policing.

In all these cases, what the police officers are, in fact, doing is producing substitute suspects for crimes that they have not resolved. In some instances, the police may be aware of the identity of the real culprits who were allowed to ‘escape’ after undue influence. In these cases, it is even more essential for the police to find substitutes. Producing substitutes creates the impression-among the department as well as the public-that the police are efficient and crimes are being solved. This paves the way to financial rewards and promotions.

The second category of cases includes infliction of torture as a sheer abuse of power, with many concrete examples to illustrate this point. Saman Priyankara  for example, was illegally detained on January 5, 2004 and severely tortured by the policemen attached to the Matale police station. Boiling water was poured down his right leg from the hip downwards, severely burning him.  The perpetrator sub inspector of police (acting on the instigation of Priyankara’s neighbour), claimed that he was going to make sure that the victim would not be able to have a normal sex life anymore. Afterwards he was given some ointment to apply on his wounds but was warned not to report the incident to anyone and not to take any treatment at the hospital.

In many cases, torture has been practiced as a result of a legitimate query by a citizen. For example, Saman Jayasuriya,  was driving a van with two others when his vehicle was stopped by two policemen in civilian clothes who asked for his license and insurance. In response, he asked for their identity and was instead, pulled out and assaulted. He managed to escape, but a contingent of policemen from the Kadugannawa police station visited his residence and mercilessly assaulted him in the presence of his wife. He was the arrested and taken to the police station with his son.

Another well known instance concerned the alleged death of a restaurant manager, H.Quintus Perera for refusing to sell liquor on a religious holiday (the Poya Day).  These cases illustrate the most heinous depths to which law enforcement has degenerated; namely the illegal punishment of individuals for trying to uphold the law by brutalized law enforcement officials who have long since, lost any respect and adherence to their office.

4.3. Maintenance of a Culture of Impunity

A specific feature of the culture of impunity is the blatant disregard with which implicated police officers falsify official documents, including the Information Book. In one case where the court found that Grave Crimes Information Book and the Register/Investigation Book had been altered with impunity and utter disregard for the law, the view was taken that it was unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original.

It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law. We may ask with Juvenal, ‘quis custodiet ipsos custodies?’ Who is to guard the guards themselves? 

Even where police officers (junior as well as senior) have been identified as personally responsible for acts of torture by the courts of law, no internal departmental action has been taken against them. Directions of the Supreme Court to the police hierarchy to initiate disciplinary action against erring police officers are blatantly ignored.  Official resistance to these pronouncements by the Court has always been high and the police department has, in fact, set up funds to provide for lawyers to appear for the accused police officers as well as to pay the sums of compensation due personally from the implicated officers.
 
The National Police Commission (NPC) was the first serious legislative attempt to restore discipline in the police force. It comprises of a body of seven persons whose security of tenure is explicitly provided for.   Its powers are two fold. Firstly, it is vested with the powers of appointment, promotion, transfer, disciplinary control and dismissal of all officers other than the Inspector General.  Secondly, and most vitally, the 17th Amendment stipulates mandatorily that the NPC "shall establish procedures to entertain and investigate public complaints and complaints from any aggrieved person made against a police officer or the police service…”  

However, the NPC, during its first term of existence, did not fulfill its constitutional expectations to any great extent, though it does deserve credit for its decision to interdict police officers indicted in terms of the Anti-Torture Act and its prevention of police officers being arbitrarily transferred during the pre-election period. Most importantly, it failed to take significant steps beyond a few preliminary discussions with members of civil society, to implement the Public Complaints Procedures as constitutionally mandated. 

4.4. Ineffective Prosecutions

The politicization of the judiciary was accompanied by a corresponding decrease of public confidence in the office of the chief law officer of the land; the Attorney General (AG). Its record of strong prosecutions for grievous human rights abuses has not been marked. Indeed, in all the decades of enforced disappearances and extra judicial killings, there have been two successful prosecutions, namely the rape and killing of a Tamil schoolgirl and thereafter, the murder of her mother, brother and friend who went in search of her, by Sinhalese army soldiers in the North in 1996 (the Krishanthi Kumaraswamy case) and the enforced disappearance of twenty five Sinhalese schoolchildren (though the numbers that were abducted and never found were much larger) by Sinhalese army soldiers in 1990, acting in collusion with the school principal motivated by a private vengeance (the Embilipitiya case). This well illustrates the duality of the failure of the prosecutorial and justice process in respect of extraordinary crimes, irrespective of ethnicities.

Undeniably the record of successful prosecutions in respect of grave crimes  as well as in regard to ‘ordinary’ torture cases has been extremely unsatisfactory.  From the time that the Anti-Torture Act was enacted into law in 1994, no convictions for torture resulted up to 2004. Thereafter, two convictions were made by the High Court, but this remedy continues to be inefficacious due to long delays in filing indictments, filing faulty indictments and delays in the substantive trial proceedings.
 
According to the Attorney General's department, while a few (five) cases indicted under the Anti-Torture Act have resulted in acquittals, the vast majority of cases are still pending.  Though some indictments have been sent to the relevant High Courts almost two years to the date, they have yet to be served on the accused and the reason given for this has been the severe backlog of cases in many high courts.  On its own part, the Department, which is responsible for the issuance of the indictments, is accused of delay. 

However, in many cases, it was found that despite evidence of grievous torture being disclosed, prosecutions are not ensured. For example, in the Nandini Herath case, indictment was not filed under the Anti-Torture Act but the police merely pressed charges for simple hurt.   In Jagath Kumara’s case   (where he was arrested, detained and tortured by the Payagala police station officers in June 200 and died at the Welikada prison thereafter), though the information and relative files were handed over to the Attorney General, no prosecution was the result. Yogalingam Vijitha’s case is also instructive in this regard.  The Supreme Court ordered compensation and costs to be paid to a Tamil woman who had been arrested, detained and sexually tortured. The Court  stated as follows;

As observed ‘the facts of this case have revealed disturbing features regarding third degree methods adopted by certain police officers on suspects held in police custody. Such methods can only be described as barbaric, savage and inhuman.  They are most revolting and offend one’s sense of human decency and dignity particularly at the present time when every endeavor is being made to promote and protect human rights.

Though it was directed that the culpable officers be prosecuted, this was not done. 

A primary problem in this regard is that prosecutors depend solely on police investigations for the establishing of a prima facie case on which indictment is issued. In many cases, good investigations are simply not forthcoming by police officers who are essentially, investigating their own colleagues.

4.5. Exposing Deficiencies in the Nature of Litigation at the Supreme Court

Even at a point when fundamental rights litigation was at its zenith, the gap between judgments and their implementation was immense.  Judgment upon judgment was delivered by the Supreme Court finding torture to have been committed by officers in custodial authority but none were implemented in order that these officers would be disciplined or prosecuted. 

At the least, these officers were not even removed from their positions or interdicted with catastrophic effect as seen in one particularly poignant instance of Gerald Perera’s case,   The rights petition that he filed was upheld by the Supreme Court. However, no disciplinary action was taken as recommended against the responsible police officers who continued serving in their posts. A year later, as he was due to testify in the case instituted in the High Court under the Torture Act against the police officers who had tortured him, he was shot and killed at point blank range by some of those very same police officers. The murder trial is ongoing.

With the gradual politicization of the Supreme Court examined early on in this paper, an increased arbitrariness on the part of some judges was evidenced in response to fundamental rights petitions. In one particular case, the Court, by the order of the Chief Justice, sentenced a lay litigant to one year rigorous imprisonment on the basis that he had talked too loudly in court and filed numerous motions in support of his application. Despite the manifest injustice of this sentencing, no perceptible outrage was shown by non-governmental organizations, including those specifically working with the legal system and it was left to a few domestic lawyers to take up the cause of the arbitrarily sentenced litigant, Tony Fernando with the single support of the AHRC. The UN Human Rights Committee later found Fernando’s rights against arbitrary detention to have been violated. 

Another distinct feature in recent times has been judicial inconsistency in granting of compensation to victims of torture in fundamental rights cases. Earlier, such sums had been considerable, indicating that the Court wished that the imposing of these amounts would have a deterrent impact. In Silva vs. Iddamalgoda , an alleged army deserter arrested by the police, died whilst in remand custody. The Court gave relief to his widow on the basis that she and her minor child were entitled to the compensation that the deceased would have received, but for his death. A sum of SLR 700,000 was directed to be payable by the State and SLR 50,000 each by the two errant police officers personally.

In one case  where death was due to assault by prison officials rather than by the police, the State was directed to pay a sum of SLR 925,000 while each of the three prison officials were directed to pay SLR 25,000, amounting to one million in equal shares.  In awarding this considerable sum as compensation and costs, the Court took into account the fact that the deceased was a father of three minor children. The treatment meted out to him while he was at the Negombo prison, which “painted a gruesome picture where a hapless prisoner was brutally tortured and left alone, tied to an iron door, to draw his least breath,” was a contributory factor to the high award.

While these two cases involved the ultimate death of the victim, in Gerald Perera’s case  which concerned severe torture, the Court granted the sum of SLR 800,000 as compensation and costs for the violation of the petitioner’s rights, payable both by the police officers found to be responsible for the violations and the State.  Additionally, the Court granted the petitioner’s claim to reimbursement by the State of his medical expenses, including treatment obtained at a private hospital due to the gross torture that he suffered, despite the contention of the respondents that the charges were exorbitant and treatment could have been obtained at a state hospital. At that time of his killing by the very police officers who were responsible for torturing him, a major portion of the medical re-imbursements had yet not been paid to him. 

As contrasted to these awards, smaller amounts of compensation is being awarded in recent cases as exemplified in Tissa Kumara’s case as well as in some others.  In the case of BA Surange Wijewardene , the amount awarded was a paltry SLR 15,000, split between the three respondents while in D.A. Nimal Silva Gunaratne v Kodituwakku , the petitioner was given only a nominal sum of SLR 50,000 and SLR 20,000 as costs despite the loss of one eye as a result of torture as well as the finding that his right to freedom from arbitrary arrest and detention had been violated. In Erandaka and Anor vs Halwela, OIC, Police Station, Hakmana  where the petitioners were assaulted while in prison as evidenced by the medical records, payment of compensation in the sum of SLR 25,000 by the State was awarded to each of the two petitioners, in the absence of the identification of the particular prison officers responsible for the assault.

4.6. Inadequate Magisterial Supervision

In Madiliyawatte Jayalathge Thilakarathna Jayalath  , a particular feature remarked upon by the High Court was the paucity of magisterial supervision of the victim of torture when he had been produced before the judicial officer and specifically, the failure to question the suspect as to whether he had been tortured. This is a common problem in Sri Lanka. A recent judgment of the Court articulates this breakdown of the element of magisterial supervision in the detention process.

In Weerawansa v Attorney General , remand orders by the Magistrate, Harbour Court, made under the ordinary law were held to be in violation of the Petitioner’s rights in that several such orders of remand had been made even though the Magistrate or the acting Magistrate did not visit or communicate with him. This was ruled to offend a basic constitutional safeguard in Article 13(2), that judge and suspect must be brought face to face before liberty is curtailed, which safeguard was not an obligation that could be circumvented by producing reports from the police. An earlier view  that remand orders, where they concern a patent want of jurisdiction, cannot be safeguarded under the cover of being ‘judicial acts’ with consequent immunity from fundamental rights challenge, was agreed with. 

4.7. Complicity of Politicians in Abuses

The unconcern and indeed, the complicity of politicians in regard to the occurrence of torture is also interesting. In Nandini Herath’s case, for example, the Minister of Women’s Affairs at the time that Nandini was tortured, who lived close to her house, at all times, only defended the accused police officers. 

4.8 Turning upon their own kind

Instances of police officers or military persons being themselves the targets of violence by their fellow officers is not uncommon. In V.K Swarnarekha’s case, a healthy thirty year old police woman was ‘disappeared’ in 1993 and there was suspected complicity of the police. However, the case was hushed up and there were no inquiries by the CID.  There is also the case of a naval officer, Elmo de Silva being illegally detained and tortured in January 2001 when he tried to remonstrate with the police officers of the Ja-ela police station for using bad language to his wife and cousin when they had gone to visit his wife’s uncle who was in custody.

4.9 Corruption of medical officers and collusion of NHRC officers with police torturers

In the case of Garlin Kankanamge Sanjeewa  whom the police claimed, committed suicide inside the police station, the medical report pertaining to his death was seriously impugned by the family. The Chamila Bandara case is a further excellent example. Whilst being a minor, he was tortured from 20th to 28th July 2003 at Ankumbura Police Station, ostensibly on grounds that he had committed a petty crime. He was hung by his thumbs and the Officer in Charge (OIC) hit him on his legs and the soles of his feet with wicket stumps used for cricket.

This young boy was not produced before a Junior Medical Officer, for examination despite being admitted to the Kandy hospital for treatment. It was only, after being re-admitted to the Peradeniya Hospital, that Chamila was given a proper medical examination, as a result of which, doctors declared the impairment of the use of his left arm. The second stage in this saga came when his case was reported to the district area co-ordinator of the National Human Rights Commission (NHRC) who, going by only the police version, concluded that there had been no mistreatment. Desperate by this collusion of the NHRC officer with the implicated police officers, his family appealed to and its local partners. It was primarily as a result of this pressure that investigations were re-opened into Chamila Bandara’s case by the National Human Rights Commission and the matter was handed over to a one man inquiry committee. Meanwhile, the members of his family were threatened by the police officers named as those responsible and Chamila himself had to go into hiding.

While this was ongoing, his case was taken by the AHRC  before the United Nations Human Rights Committee at its seventy ninth session when it considered Sri Lanka’s combined fourth and fifth Periodic Reports under the International Covenant on Civil and Political Rights (ICCPR). Chamila himself gave testimony before the members of the UN Committee.  Chamila Bandara’s grievance was ultimately vindicated by the report of the one man inquiry committee of the NHRC which concluded that the young boy had, in fact, been tortured, as a result of which, his rights under Article 11, Article 12(1) and Article 13(1) and (2) had been violated.

The Officer In Charge of the Ankumbura police and other police officers serving under his command were found responsible. The final recommendation of the inquiry committee was that a copy of the inquiry report be sent to the IGP who should send severe warning to the individual police officers that any further instances of abuse on their part would result in a termination of their services.  Like in the case of similar directions by the Supreme Court, this too has been of no practical value in bringing about disciplinary action against the culpable police officers. 

In addition, his case exemplifies a further problematic development at the stage of fundamental rights litigation. Individual Supreme Court judges now prefer to lay bye fundamental rights hearings in instances where a parallel High Court trial is taking place, ostensibly on the basis that the finding of the Court might influence the attitude of the High Court. For example, in Chamila Bandara’s case, this is precisely what happened and the matter is now indefinitely laid bye.  This attitude continues to be taken despite the protestations of lawyers appearing for the victims that the inevitable laws delays attending the trial will also render the Supreme Court remedy, redundant and that, in any event, the two judicial proceedings are different and should be proceeded with differently.

4.10. Impossibility of Ensuring Justice without Witness Protection

Responsibility for the absence of a witness protection scheme speaks to the responsibility of the Department itself and the commitment of the State to ensuring justice. The extent to which this has been a factor in crippling the criminal justice proces  is clear. Chamila Bandara (cited above), together with his family members were threatened by the OIC of the Ankubura Police and, in consequence had to remain many years in hiding. 

Similar patterns of intimidation are apparent in a large number of cases; Lalith Rajapakse  learnt that there was a plot to poison him after he made the initial complaint against the respondent police officers and had to go into hiding. In the case of Gerald Perera, he was, in fact, killed after numerous threats by the police officers who had tortured him proved to be unsuccessful in coercing him to withdraw the litigation that he was engaged in. 

5. Conclusion

There is no doubt that the failure of effective law enforcement is a central question in Sri Lanka today. A number of measures that should be taken to redress this failure have been outlined by the AHRC , including revision of the prosecutorial and investigative process and the initiation of an effective witness protection system.  A special police unit empowered to entertain complaints and immediately commence investigations is a necessity, not only in ‘special cases’ of torture (where international pressure is brought to bear on state authorities) but rather, in all cases.

Ideally, an office of a Special Prosecutor having the appropriate independence of office with independent investigative staff should be established. The investigative/prosecutorial machinery set in place should follow special procedures in relation to investigating and prosecuting complaints by women victims of torture. Such an office would also better co-ordinate the present procedures in respect of examining urgent appeals by victims of torture instead of committees of government officials which is presently the case.  has also urged the application of the doctrine of command responsibility, the use of developed forensic investigations and a detailed list of specific suggestions  relating to arrest and production in court  speedy investigations and filing of indictment under the Anti-Torture Act and initiation of community protection mechanisms.
   
The intensification of the conflict and the increasing breakdown of law and order in all parts of the country have led to incidents of disappearances, extra judicial killings in recent months, thereby creating a climate that is highly conducive to human rights abuses. This has been further enabled by the return to rule by emergency regulations conferring extraordinary powers of arrests and detentions on the forces which have had inimical effect in controlling and preventing practices of torture.

Thus, the essential crisis in Sri Lanka still remains the non-implementation of the rule of law. The shift from a central focus on this question to nebulous, (though highly profitable), ventures in peace and conflict resolution on the part of the country’s non-governmental community has been unfortunate; it has wasted time and effort in processes that were doomed from the start precisely due to its flawed conceptualization. More importantly, it has allowed sometimes insidious and sometimes sledgehammer attacks on constitutional institutions and indeed, the very Constitution to take place with scarcely a murmur; the result has been a calamitous breakdown of the governance process.

In this situation, talk of constitutional solutions to solve the ‘ethnic problem’ has been limited to rhetoric and political maneuvering; where constitutional provisions are blatantly abused by the political establishment in respect of governing the South, can there be any hope in such a Constitution providing any solution for the intractable war in the North/East?

The studies engaged in by  and its partner activist networks in Sri Lanka, which have been examined in this paper, show the overriding importance of returning the reform process back to the basics of restoring the legitimacy of the justice system and in particular, the law enforcement process. This should, indeed, be the central focus of our work.

[Footnote: see the PDF version for footnote locations]

* Lawyer/legal consultant, media columnist and author.
24  The Independence Constitution in 1947 established the judicature as a body distinctly separate from the executive and the legislature and safeguarded minority rights in Section 29(2). But affronted by what it saw as an unwarranted bridling of their authority, the leftist United Front government which formed the government in 1970, deciding on an autochthonous or disastrously ‘home grown’ formula, specified  that the legislature, (the National State Assembly) was the sole and supreme repository of power. All other institutions, including the judiciary, had to give way. Regardless of whichever government came into power then on, political expediency determined the course of constitutional and political events in Sri Lanka.   
25  The present constitution, available at  <http://www.priu.gov.lk/Cons/1978Constitution/Introduction.htm>
26  These developments were in sharp contrast to, for example, neighbouring post colonial India’s commitment to the democratic norm and in particular, the constitutional environment where the right to life was recognised in many of its ramifications, including all the ingredients that go to make the quality of life, not just physical existence. The growth of public interest litigation was spurred by a receptive constitutional framework.   
27  Basil Fernando, ‘The Tale of Two Massacres; The Relevance of Embilipitiya and Bindunuwewa to Conflict Resolution in Sri Lanka’, in Law and Society Trust Review, Vol. 15 Issue 212, June 2005
28  As is currently the case with the Nordic backed Sri Lanka Monitoring Mission, (SLMM) which has, by now lost public support to a great extent
29  The Chambers Dictionary explains ‘praxis’ as the practice or practical side of an art or science, distinguished from its theoretical side
30  The Supreme Court has exclusive jurisdiction to hear and determine complaints of violation of fundamental rights (except the right to life) by executive or administrative action. Article 13(1) stipulates arrest only according to ‘procedure established by law’ and the giving of reasons for the arrest. Article 13(2) states that every detained person must be subjected to judicial supervision and that further detention must only be upon judicial order.  Article 13(3) is to the effect that ‘any person charged with an offence shall be entitled to be heard in person or by an attorney-at-law, at a fair trial by a competent court” while Article 13(4) prohibits the punishment of death except by order of a competent court. Article 11 states that ’No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."   
31  Sri Lanka has enacted domestic legislation to give effect to the UN Convention against Torture. Section 2 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act No 22 of 1994 (hereafter the Anti-Torture Act) makes torture, or the attempt to commit, or the aiding and abetting in committing, or conspiring to commit torture, an offence. A person found guilty after trial by the High Court is punishable with imprisonment for a term not less than seven years and not exceeding ten years and a fine not less than Rs10,000 and not exceeding Rs 50,000.   
32  Sri Lanka has always been governed by either the Sri Lankan Freedom Party (SLFP, a core constituent of the 1970 United Front government as well as of the modern Peoples Alliance) or the United National Party (UNP), often as coalition of other parties, mainly the SLFP with leftist parties and the UNP with minority parties. But these lines often being blurred contingent on expedient power politics.   
33  Senadheera Vs The Bribery Commissioner 63 NLR 313   
34  Queen Vs Liyanage (1966) 68, NLR 265, Bribery Commissioner Vs Ranasinghe (1964) 66 NLR 73    
35  In Bribery Commissioner Vs Ranasinghe, ibid., later affirmed by the Privy Council in Kodeeswaran Vs The Attorney General (1969 72 NLR 337) it was pointed out that section 29(2) of the Independence Constitution represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and are therefore unalterable under the Constitution. 
36  In place of the earlier independent Judicial Service Commission, a politically subverted Judicial Services Advisory Board (JSAB) and an ineffective Judicial Services Disciplinary Board (JSDB) was established. The JSAB had no right to appoint minor judges but only to recommend their appointment to the Cabinet. (Articles 126 and 127 of the 1972 Constitution) 
37  Only one case alleging violation of fundamental rights was filed during this time in the District Court, Ariyapala Guneratne Vs The Peoples Bank, 1986 SLLR 338  
38  Article 107. As in the two previous Constitutions, the security and tenure of the judges were guaranteed and judges of the superior courts held office during good behaviour and could be removed only after address of Parliament on grounds of proved misbehaviour or incapacity and that the full particulars of such allegations should be set out, vide Article 107 (2). The JSAB and the JSDB were replaced by a Judicial Service Commission (JSC) vested with the same powers. The JSC consisted of the Chief Justice and two other judges of the Supreme Court, named by the President, who could be removed only for cause assigned, vide Article 112.  
39  Seven out of the nineteen judges holding office were not re-appointed, thus reducing their guaranteed tenure.  
40  The attempted impeachment of then Chief Justice Neville Samarakoon allegedly due to criticism of the government by him during the course of a speech at a school prize giving ceremony was another black mark of this time. The Select Committee appointed to investigate his conduct (divided according to party affiliations), found no “proved misbehaviour” which could justify the Chief Justice’s removal but viewed his conduct as a serious breach of convention.
41 SC Application Nos 7-47/87 (Spl) and SD 1&2/87(Presidential Reference).
42  Article 126(2) gives the right to move court only to a person alleging the infringement of any right ‘relating to such person’, or an attorney at law on his behalf. Bona fide public interest groups, unlike in the Indian constitutional context, cannot come before court on behalf of a victim. 
43 Only executive and administrative challenge is permitted. Judicial or legislative acts are not challengeable.
44  Article 16(1) of the Constitution. Article 121 of the Constitution provides that bills must be challenged within one week of their being placed on the Order Paper of Parliament. Even though there is a constitutional requirement to publish the bills in the gazette at least seven days before it is placed on the Order Paper of Parliament, vide Article 78 (1), the gazettes are not easily obtainable and offensive bills go unchallenged. In any event, this scrutiny is also brushed aside when the Cabinet certifies a bill as being urgent in the national interest. Here, the bill is referred directly by the President to the Supreme Court for its constitutionality and citizens have no formal right of challenge, vide Article 122.
45  It was only in 2003 that the Court inferred a positive right to life from the constitutional right not to be punished with death or imprisonment except by court order underArticle 13(4). See, Perera Vs Iddamalgoda 2003 [2] SriLR, 63,  per judgment of Justice Mark Fernando and the Wewalage Rani Fernando case, SC(FR) No 700/2002, SCM 26/07/2004, per judgment of Justice Shiranee A. Bandaranayake. These two cases are also authority for the proposition that a dependant has the right to come before court on a rights petition when a family member dies as a result of police torture. It took the Court more than twenty five years to affirm these core rights as being implied from the existent constitutional provisions.
46  Per Justice MDH Fernando in Perera vs.Iddamalgoda (ibid), Sanjeewa vs Suraweera, 2003 [1] SriLR, 317, Wewelage Rani Fernando (ibid), Banda v. Gajanayake, 2002 [1] SriLR 365, in the context of emergency regulations, AM Vijitha Alagiawannawe vs LPG. Lalith Prema, Reserve Police Constable and Others (SC (FR) No 33/2003 SCM 30.11.2004.   Deshapriya v. Weerakoon SC 42/2002 SCM 8.8.2003. The principle asserted was that participation, authorization, complicity and/or knowledge is not compulsory for responsibility to be found on the part of a superior officer. This could arise purely on dereliction of duties. This principle was judicially stretched to encompass even an instance where an officer-in-charge of a police station fails to promptly record the statement of the Petitioner regarding his assault and to embark on an investigation in respect of the same.
47  In re Perera , SC 1/90; Supreme Court Minutes (“SCM”) 18.9.1990.
48  Joseph Perera Vs The Attorney General (1992) 1 Sri LR 199, 230, Shanthi Chandrasekeram Vs D.B. Wijetunge and Others (1992) 2 Sri L.R. 293, Channa Peiris Vs AG (1994) 1 SLR 1 at p 51 and Sunil Rodrigo Vs De Silva (1997) 3 SLR 265 where the Court upheld the right of a detainee under emergency to be speedily produced before a magistrate and to have legal representation.
49  See, report by the United Nations Special Rapporteur on the Independence of the Judiciary in April 2003 to the UN Commission on Human Rights, (E/CN.4/2003/65/Add.1 25, February 2003) and several relevant press releases of the Special Rapporteur. See also, releases dated 27 February 2003 and 28 May 2003. Also Report of the International Bar Association, 2001 “Sri Lanka: Failing to protect the Rule of Law and the Independence of the Judiciary.”
50  The Chief Justice has absolute power to constitute benches to hear cases in the Supreme Court. One notable casualty of this practice was the then seniormost judge, Justice Mark Fernando who had, in fact, been bypassed for promotion in 1999 by President Chandrika Kumaratunge in favour of then Attorney General, S.N Silva. Thereafter, Justice Fernando was not assigned to sit on any bench hearing important constitutional matters despite court tradition to the contrary, given his seniority. He retired two years prematurely on the basis that he could no longer fulfil the expectations on which he had assumed judicial office.               
51  In one instance in particular, involving three fundamental rights petitions filed against his own appointment, the Chief Justice constitited a Divisional Bench consisting of the most junior judges rather than the most senior, indicating a clear contempt for convention and precedent.               
52  See, the State of Human Rights in Eleven Asian Nations-2006, Asian Human Rights Commission, in the chapter on Sri Lanka, at page 288. See among others, case of B.A.S. Surange Wiijewarded (SC(FR) 533/2002, SCM 27.5.2005, where the compensation given was only SLR 15,000 divided between three respondents and the case of Palitha Tissa Kumara (SC(FR)  211/2004) where despite a finding of extensive torture, the compensation awarded was only SLR 25,000.     
53  See the highly critiqued judgment by a divisional bench of the Court in the Singarasa case, (SCM 15.09.2006, judgment of Chief Justice Sarath Silva), ruling that Sri Lanka’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) was unconstitutional. This has posed direct obstacles to ongoing campaigns to pressurise the Sri Lankan Government to ratify the Optional Protocol to the Convention against Torture (CAT). 
54  The United Nations Human Rights Committee has, up to date, delivered six Communication of Views against the Sri Lankan State in terms of the Protocol to ICCPR, namely Fernando Vs Sri Lanka Case No 189/2003, Adoption of Views on 31, March, 2005), Sarma Vs Sri Lanka No 950/2000, Adoption of Views on 31 July 2003, Jayawardene Vs  Sri Lanka, Case No 916/2000 Adoption of Views on 26 July 2002, Ivan v Sri Lanka, Case No 909/2000, Adoption of Views on 26 August 2004, Sinharasa Vs  Sri Lanka, Case No. 1033/2004 Adoption of Views on 23 August 2004 and Rajapakse Vs  Sri Lanka Case No 1250/2004, Adoption of Views on 26 July 2006. However, there has been no implementation of these Views up to date. In some cases, such as in Fernando which involved a violation of ICCPR 9(1) as a result of the arbitrary sentencing for contempt by the Supreme Court, the government has replied to the Committee saying that it could not implement the Views since it would be construed as an interference with the judiciary.
55  Supra, note 26 ,  Report of the International Bar Association, 2001 “Sri Lanka: Failing to protect the Rule of Law and the Independence of the Judiciary
56  Interview by former Supreme Court Justice CV Wigneswaran, one of the most respected judges of the Court, to the Sunday Leader, (13.3.2005), consequent upon his retirement.
57  Act, No 19 of 1994
58  Act, No 21 of 1996, hereafter the NHRC Act
59  The requirement, for example, that the NHRC should be informed of any arrest and detention taking place under the Prevention of Terrorism Act, No 49 of 1979, vide Section 28(1) of the NHRC Act, is not adhered to. Indeed, the very requirement that any person with the authority of the Commission may enter into any place of detention 9Section 28(2) of the NHRC Act is defeated by police practice that had in fact, been formalized by a police circular which allows officials on the NHRC to inspect (with prior notice) only the cells of police stations themselves but not the entire precincts of the station including the toilets and the kitchen, where, most often, torture takes place. 
60  This provision violates the Paris Principles in that “[a]n effective national institution will have drafted its own rules of procedure and these rules should not be subject to external modification.”    
61  Relevant rules that would have permitted the NHRC to refer cases to the appropriate court as mandated by Section 14(3)(b) have not been yet prescribed by the Supreme Court.
62  Five individuals of high integrity and standing in public life and with no political affiliations, (out of which, three members represented the minorities), had to be nominated jointly to the CC by the Prime Minister and the Leader of the Opposition. One member had to be nominated by the smaller parties in the House, which did not belong to either the party of the Prime Minister or the Leader of the Opposition. In addition, the President had the authority to appoint a person of his or her own choice. The rest of the CC comprised the Leader of the Opposition, the Prime Minister and the Speaker of the House ex officio.      
63  The Elections Commission was not constituted at all due to the President Chandrika Kumaratunge refusing to appoint the nominee of the CC as its chairman.
64  Though names of five nominated members were agreed upon by the Prime Minister and the Leader of the Opposition and communicated to the President for appointment as constitutionally required in late 2005, these appointments were not made. The deliberate delay on the part of the smaller political parties in parliament to agree by majority vote on the one remaining member to the CC was cited as the ostensible reason for the CC not being brought into being. The many representations made to the President by civil society groups that the one vacancy in the CC should not prevent the appointment of the members nominated already and that the consequent functioning of the body was essential to the good administration of the country, were to no avail. 
65  AHRC, A Special Report on Torture, article 2, Vo1.1, No 4 August 2002, at page 2.    
66  AHRC Second Special Report on Torture, article 2, Vo1 3. No 1, August 2002, at page 2.    
67  Mission to Sri Lanka, 28 November – 6 December 2005, LST Review, Vol. 16, Issue 221 March 2006. He called on government officials to accept that disrupting this pattern of custodial torture is a necessary step not only in ensuring the human rights of those arrested but also of retaining public trust and confidence.    
68  KonesalingamVs Major Muthalif and Others, S.C. (FR) No. 555/2001, SCM. 10th February, 2003.     
69 Shanmugarajah Vs Dilruk, S.I., Vavuniya, S.C. (FR) No. 47/2002, SCM. 10th February, 2003    
70 Adhikary and Adhikary Vs Amerasinghe and Others, S.C. (FR) No. 251/2002, SCM. 14th February, 2003    
71  Senasinghe Vs Karunatilleke and Others, S.C. (FR) No. 431/2000, SCM 17th March, 2003.    
72  Silva Vs. Iddamalgoda, 2003 [2] SriLR, 63    
73  Both in the Chamila Bandara case (AHRC UA -35-2003) and the Wewelage Rani Fernando case,(SC(FR) No 700/2002, SCM 26/07/2004) the police arrest was on the basis that the arrestee had stolen some bunches of bananas. The first petitioner, while being a minor was brutally tortured by the police while the second arrestee was brutally tortured by prison officials resulting in his death.    
74  AHRC Urgent Appeals (UA-18-2004).     
75  Complaints of torture recorded at police stations are first referred to the Assistant Superintendent of Police (ASP) or Superintendent of Police (SP) of the relevant area. If they are entertained, the legal division of the police refers them to the IGP who refers them thereafter to the Special Investigations Unit (SIU). The SIU (which is in charge of investigating all complaints against police officers (including fraud) and is currently completely under staffed) is directly under the command of the IGP. The IGP may also instruct the Criminal Investigations Department (CID) or another special unit of the police to conduct further investigations but this is exceptional. For years, domestic and international activist groups have been calling for an independent investigative and prosecutorial office to inquire into such complaints that invariably involve law enforcement officers themselves and which cannot be effectively inquired into by their fellow police officers particularly as postings at the SIU are transferable.        
76  AHRC Third Special Report on Torture; An X-Ray of the Sri Lankan policing system and torture of the poor, at page 6
77  Section 23(1) of the Code of Criminal Procedure Act, No 15 of 1979 incorporates accepted procedures in relation to arrest, including the stipulation that the person making the arrest must inform the arrestee of the nature of the charge or allegation upon which the arrest is made. This provision of the Code in practice today reflects similar principles in the old Criminal Procedure Code to which it succeeded.      
78  The case of Gerald Perera is an example. A law abiding employee of the Ceylon dockyard was arrested by the police under mistaken identity, considering him to be a known criminal by the name of “Gerald.” He was tortured so severely that he suffered renal failure. The Fundamental Rights petition that he filed was upheld by Court, Sanjeewa Vs Suraweera, 2003 [1] SLR, 317.    
79  AHRC UA-19-2002. He had been accused of involvement in two petty theft cases even though no one had filed any complaints against him and there was no proof to implicate him.     
80  The case law is specific in this respect; see, Amal Sudath Silva Vs Kodituwakku [1987] 2 Sri LR, 119, Senthilnayagam Vs Seneviratne [1981] 2 Sri LR 187, Dissanayake Vs Superintendant, Mahara Prisons, [199] 2 Sri LR, 247, Premalal de Silva Vs Inspector Rodrigo [1991] 2 Sri LR 307, Pellawattage (AAL) for Piyasena Vs OIC, Wadduwa SC Application No 433/93 SCM 31.08.1994. In Silva Vs Iddamalgoda, 2003 [2] SriLR, 63, a specific argument that an alleged bad record of the petitioner should be held against him was dismissed by Court pointing not only to the presumption of innocence but also that by the respondent’s actions in depriving the petiitoner of life, he lost the opportunity to redeem the alleged bad record. 
81  HC 9775/99, order of S. Sriskandarajah J.     
82  AHRC Third  Special Report on Torture; An X-Ray of the Sri Lankan policing system and torture of the poor, at page 7      
83  AHRC-UA 07-2004 
84  AHRC-UA 31-2004 (1 April 2004). 
85  AHRC-UA 132-2004 (5 October 2004). 
86  Kemasiri Kumara Caldera ‘s case, S.C. (F.R.) 343/99, SCM 6/11/2001. 
87  See, Sanjeewa Vs Suraweera, supra note 55, Silva Vs Iddamalgoda, supra note 57, as well as Dayaratne’s Case, (SC (FR) 337/2003 SCM 17.5.2004) where a senior attorney was severely assaulted for attempting to remonstrate with the police over the arrest of a neighbour’s son, are some recent examples.
88  Vide 17th Amendment, Article 155A.   
89  Vide 17th Amendment, Article 155G(1)(a).
90  Vide 17th Amendment, Article 155G (2).  Italics added.  
91  Though a Public Complaints Procedure was put into place by the second NPC, its legitimacy was negated by the fact that the members of this body were unconstitutionally appointed by the President as was discussed previously.     
92  The rate is 4% see the State of Human Rights in Eleven Asian Nations-2006, Asian Human Rights Commission, in the chapter on Sri Lanka, at page 288.  
93  In its reports to the UNHRC and to CAT, (UN Human Rights Committee (CCPR/CO/79/LKA) Human Rights Committee, seventy ninth session, November 2003 and Committee Against Torture (CAT/C/LKA/CO/1/CRP.2. 7-25 November 2005), the State referred to a special unit [Prosecution of Torture Perpetrators Unit (PTP Unit)] in the Attorney General’s Department. Closer scrutiny reveals that there is no separate Unit dealing with torture cases and the Unit is only an administrative convenience with neither specially assigned staff nor separate premises.  The torture cases are distributed among 4 - 5 State Counsels, who also handle other criminal cases. The AG does not seem to monitor to investigations conducted by the SIU. Neither is the progress of an investigation reported to the AG. 
94  Condensed from information afforded by the Attorney General's Department during interviews by researchers with its officers during 2004 for the preperation of a joint report to the 2005 CAT sessions by the Law and Society Trust and the Asian Human Rights Commisison (AHRC).  
95  Ibid.
96  The common unacceptable defence being that this is because most torture cases reported is from the North and the East and the conflict impedes expeditious proceedings. The recent situation of issuance of indictment consequent to the renewal of conflict in the North/East from 2006 onwards has not yet been ascertained.
97  AHRC, A Special Report on Torture, Article 2, Vo1.1, No 4, August 2002, at pages 14 and 15.
98  Id., at page 18 – situation existent as at August 2002.
99  S.C. (FR) No. 186/2001, SCM 23.8.2002
100  Citing Athukorala J in Sudath Silva Vs Kodituwakku 1987 2 SLR 119
101  Vide letter written by the co-ordinator of the urgent appeals programme of  to then Minister of the Interior dated 9 September 2002, asking that the relevant police officers be indicted. – quoted at AHRC Special Report on Torture,Article 2, Vo1.1, No 4, August 2002, at page 52
102  The number of credible complaints of torture and cruel, inhuman and degrading treatment whilst in police custody shows no decline.” per observation of Justice Mark Fernando in Sanjeewa vs Suraweera, 2003 [1] SLR, 317. This is one of the many cases which recommended that disciplinary action be taken against the relevant police officers but was not adhered to. 
103  Ibid.
104  Fernando vs Sri Lanka Case No 189/2003, Adoption of Views on 31, March, 2005)
105  Supra note 57
106  Wewelage Rani Fernando, supra note 
107  Sanjeewa vs Suraweera , supra note, 55. 
108  See, the State of Human Rights in Eleven Asian Nations-2006, Asian Human Rights Commission, in the chapter on Sri Lanka, at page 288
109  Ibid.
110  Ibid.
111  [2004] 1 Sri LR, 268. Also, Adhikary and Adhikary vs. Amarasinghe and Others S.C. (FR) No. 251/2002, SCM 14th February, 2003), another recent case again involving a police assault on a lawyer where the Court ordered Rs. 20,000/- as compensation and Rs. 5,000/- as costs to be paid by the State.
112  Supra note……
113  (2000) 1 SLR 387
114  Farook Vs Raymond (1996) 1SLR, 217
115  AHRC, Article 2, Special Report on Torture, Article 2, Vo1.1, No 4, August 2002 at page 15
116  AHRC, A Special Report on Torture, article 2, Vo1.1, No 4, August 2002, at page 18 Ekanayake Vs. Weeraawasam, S.C. (FR) No. 34/2002, SCM 17th March, 2003 concerned the case of a a reserve police constable subjected to assault by a reserve sub inspector.
117  AHRC UA-41-2003
118  AHRC UA-35-2003. The same manner of torture was inflicted upon Galappathy Guruge Gresha De Silva (AHRC, Article 2, Volume1, Number 4, August 2002, p. 24).
119  It is notable that the representative of the State before the UNHRC specifically denied that torture had occurred when the case was brought to his attention by the UNHRC, more or less alleging that the allegations had been fabricated. 
120  It later transpired that the one medical report adverse to Chamila Bandara, the victim, (which contradicted the other reports finding physical injuries compatible with the nature of the torture described by the victim), was written out by a doctor who had not seen or examined Chamila Bandara.     
121  SCFR 484/2003
122  The need for such a scheme has been acknowledged by the then Attorney General himself, Mr. K.C. Kamalasabayson who made the following observation in an address of December 2, 2003: "Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?" in remarks made during the 13th Kanchana Abhayapala Memorial Lecture as reported by in The Right to Speak Loudly, Asian Legal Resource Centre, 2004. Also, ‘The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases’ Concluding Observation No 9 of the UN Human Rights Committee (CCPR/CO/79/LKA) Human Rights Committee, seventy ninth session, November 2003.
123  AHRC Third  Special Report on Torture; An X-Ray of the Sri Lankan policing system and torture of the poor, at page 9 
124  There is precedent for this in Sri Lanka in that the Office of the Public Prosecutor was first established in 1973 but was done away with after 1978.  The manner in which this office was permitted to function was however, not free from political control.   
125  AHRC Third  Special Report on Torture; An X-Ray of the Sri Lankan policing system and torture of the poor, at page 12      
126  Ibid. One useful recommendation is that suspects should be produced only before courts and not in the residences of magistrates given the practice that this manner of judicial scrutiny is often defeated by the judicial officer not even being shown the suspect.