Untitled - International Commission of Jurists

More documents

Recommendations

Info

[…] 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 141
[…] [W]itnesses expressed fear to go to Polonnaruwa because it was a Sinhala majority area. There was also a financial constraint because they had to travel a long distance to Polonnaruwa. 505 An even more forthright comment was made regarding this transfer by the HRTF: [W]itnesses from Mailanthanai fear to go to Polonnaruwa and testify against the army men from there. If overnight stay becomes necessary, as it most probably will, owing to transport problems, they would become easy targets. The witnesses are understandably unwilling to attend the courts at Polonaruwa. On their absenting themselves, warrants will be issued for their arrest. They will then have to furnish bail or be remanded. If they furnish bail and fail to attend court, their bonds will be forfeited. If they fail to pay the forfeits, they could be jailed. The witnesses have lost their dear ones, their homes have been destroyed and some of them will risk losing their liberty. To them, the transfer is a subtle move to scuttle the case. Much public confidence will be restored if the case is transferred back to Batticoloa. 506 Two witnesses filed an appeal in the Court of Appeal stating that, as Tamils, they felt insecure in travelling to Polonnaruwa to give evidence in such a controversial case; the appeal was dismissed. 507 Later, the case was transferred to the Colombo High Court in a compromise. In the Mannar Women Rape Case, the accused again applied for the matter to be moved to Colombo, but the Centre for Human Rights and Development (CHRD), a local NGO that was involved in the case on behalf of the victims, successfully managed to prevent the transfer. Later, the case transferred to Anuradhapura in the North Central Province whereas the matter should actually have been heard in the Vavuniya High Court. 508 This same pattern is evidenced in the Mirusuvil massacre case in which trial was fixed before a three-member High Court Trial at-Bar in Colombo. In one instance, a warrant was issued by the Court on four witnesses who had not attended the trial due to fear of travelling to Colombo from Jaffna. Thereafter, witnesses were brought to Colombo from Jaffna and kept in safe custody. the Mutur Magistrate, ordering the transfer on instructions of the Judicial Service Commission. Consequent to public protests when the manner in which the transfer had been effected became public knowledge (journalized as it had been by the Mutur magistrate), the case was transferred back to Kantalai. Although the official defence was that the transfer had been made for the better administration of justice, the transfer of the case to another court thousands of miles away had an unconvincing logic. Taken at the best explanation of the authorities responsible for the transfer, it still showed a grossly insensitive attitude to the family members of the victims and the witnesses in the case. Such transfer applications are now commonplace. In the killing of five students in Thandikulam agriculture school (18.11.2006), the accused police constable who was arrested and indicted in the Vavuniya High Court in connection with the incident also requested a transfer to the Anuradhapura High Court on the basis that his life would be in danger if the trial proceeded in Vavuniya. 505 Centre for Human Rights and Development, ‘Issues in the News; Justice Delayed is Justice Denied, op. cit, at p. 17. 506 Human Rights Task Force, Annual Report 10.08.1992-10.08.1993, at p. 29. 507 ibid, at p. 19. 508 Interview with attorneys-at-law watching the interests of the victims in the case, 09.07.2009. 142
Page 2 and 3:
In exploring what constitutes a ver
Page 4 and 5:
3
Page 6 and 7:
ABBREVIATIONS AC AG AHRC AI A-L ALR
Page 8 and 9:
TAB TELO TUF TULF TYL UN UNHRC UNP
Page 10 and 11:
government agencies may be unable o
Page 12 and 13:
appointed under the Commissions of
Page 14 and 15:
communities. Krishanthi Kumaraswamy
Page 16 and 17:
investigative function that could m
Page 18 and 19:
measures recommended in regard to r
Page 20 and 21:
and Bandaranaike became the prime m
Page 22 and 23:
assembly and association of trade u
Page 24 and 25:
majority pro-Sinhala political lead
Page 26 and 27:
The violence reached a crescendo in
Page 28 and 29:
enforced disappearances were report
Page 30 and 31:
The Court of Appeal dismissed petit
Page 32 and 33:
process and commissions of inquiry
Page 34 and 35:
Declaration on Upholding Human Righ
Page 36 and 37:
terms, 66 and clear guidelines laid
Page 38 and 39:
Though the drafters of second Repub
Page 40 and 41:
• Perera v. AG 89 and Wickremeban
Page 42 and 43:
was also spared the distinction of
Page 44 and 45:
The Court’s reasoning at times ap
Page 46 and 47:
however, linked the habeas corpus a
Page 48 and 49:
The ineffectiveness of the writ rem
Page 50 and 51:
The Court of Appeal when sending th
Page 52 and 53:
anything. We have received informat
Page 54 and 55:
the findings of guilt against the a
Page 56 and 57:
The Embilipitiya case is unique in
Page 58 and 59:
police did not carry out the arrest
Page 60 and 61:
sexual intercourse […].” 177 He
Page 62 and 63:
accused even though the relevant do
Page 64 and 65:
confession made to the military pol
Page 66 and 67:
Chapter Three - Commissions of Inqu
Page 68 and 69:
excesses that had preceded the acti
Page 70 and 71:
property of Sinhalese persons domic
Page 72 and 73:
appear before the Commission was al
Page 74 and 75:
Notwithstanding these consideration
Page 76 and 77:
The Commission’s recommendation t
Page 78 and 79:
Date of Publication of Report: not
Page 80 and 81:
(f) the measures necessary to preve
Page 82 and 83:
were SLFPers. I was told, that area
Page 84 and 85:
The 1994 Western, Southern and Saba
Page 86 and 87:
focused on allowing within its purv
Page 88 and 89:
3.1.3. Reflections on the Procedure
Page 90 and 91:
However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
Page 96 and 97: Interdiction from service of allege
Page 98 and 99: The Batalanda Commission recommende
Page 100 and 101: 3.3.3. The Bindunuwewa Commission D
Page 102 and 103: ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
Page 106 and 107: much affected by the awareness that
Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
Page 114 and 115: against any particular soldier or s
Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
Page 138 and 139: prosecutor’s office would be to i
Page 140 and 141: y the byzantine and unfair burdens
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
Page 148 and 149: as to why specific reform of the cr
Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
Page 154 and 155: any direct or indirect physical or
Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
show all

Untitled - International Commission of Jurists

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?