Untitled - International Commission of Jurists

[…] while those in authority hold that there is a justice system that works
without ethnic bias, cases by Tamil victims are suppressed, 1.) By delay that
allows for intimidation, 2.) Harassment where the victims have to eke out a
living amidst trauma and misgivings as to whether the uncertain wait for
justice is a practical proposition and 3.) Filing indictments in a court where the
victim is at a distinct disadvantage. 502
These three points are well-illustrated in the following analysis as well as generally in
this segment of the report.
5.1. Transferral of Cases
Ordinarily transfers of cases, including cases of gross human rights violations such as
extrajudicial executions and enforced disappearances, from one court to another is
effected through a granting of leave by the Court of Appeal or, more commonly in
practice, upon order of the Judicial Service Commission (JSC). This is often upon the
motion of the accused and on the basis that risks would be posed to defendants if the
case were to be heard in the Court situated in the area where the violation occurred. In
many cases of gross human rights violations committed during the conflict, the matter
has been transferred to a court in the predominantly Sinhala North Central Province or
to Colombo. This is clearly unfair in circumstances where the victim, family members
or witnesses, often of Tamil origin and from the most marginalised villages in the
North and East, have already suffered traumatisation by the incident and continue to
be intimidated and threatened by the perpetrators. In these circumstances, victims and
witnesses are unable or unwilling to engage in hazardous travel to other parts of the
country to give evidence or pursue the trial. From the outset therefore the legal
process is evidently weighted against the victims. An exception is possible only if the
case is pursued by a non-governmental organisation (NGO) on behalf of the victims
in which case, strenuous efforts are evidenced to at least have the trial proceed in the
capital city.
An instructive example in this regard is the Mylanthanai massacre case referred to
above. 503 The non-summary inquiry originally took place in the Magistrate’s Court,
Batticoloa, but following two appearances before the Batticoloa magistrate, the matter
was transferred to the Polonnaruwa Magistrates’ Court, which is situated in the
predominantly Sinhala North-Central province. Lawyers watching the interests of the
massacre victims complained that the transferral was at the instance of the Attorney
General, without any reasons being given for the transfer. 504
502 University Teachers for Human Rights (Jaffna), ‘From Welikade to Mutur and Pottuvil: A
Generation of Moral Denudation and the Rise of Heroes with Feet of Clay,’ Special Report, No. 25,
2007.
503 See Centre for Human Rights and Development, ‘Issues in the News; Justice Delayed is Justice
Denied,’ Sentinel, Colombo, September-December 1999, at p. 17 for discussion of what transpired in
this case.
504 A more recent case which is within the mandate of inquiry of the current Commission to Investigate
Grave Human Rights Violations is the killing at point blank range of 17 aid workers in Mutur in
August 2006. Here too, the case which was originally heard in the Mutur Magistrate’s Court (being the
relevant court having jurisdiction in that matter) was transferred to the Magistrate’s Court of
Anuradhapura (situated in the predominantly Sinhala North Central Province. What made the transfer
even more problematic than in the Mylanthanai case was that in this instance, the transfer was not by
the Attorney General but as a consequence of a phone call made by the Secretary, Ministry of Justice to
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