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5.2. Language Issues at Trial Stage
In one notable instance, when indictment was served on a person of Tamil ethnicity
only in Sinhala, Eastern High Court judge J. Visuvanathan expressed the opinion that
“it would be a travesty of justice if the inquiry were to be held against the accused
without providing him with the Tamil translation of his confession.” 509
Although the instance above relates to a suspect rather than witnesses giving evidence
in the trial of the killings of their family members and loved ones, the language issue
is a major factor in trials and results in the postponement of cases as pointed out
below. Article 24 of the 1978 Constitution (as amended) provides specifically for
translation of documents relevant to a court inquiry. However, this constitutional right
has not been transformed into practical application in the legal process due to failure
to direct resources towards the provision of adequate translation services. According
to data relevant to 2004, the Government Translators Office had only 44 translators
proficient in Sinhala to Tamil or Tamil to Sinhala, 108 translators proficient in
Sinhala to English and 14 translators proficient in Tamil to English. 510
Similarly, in the Mylanthanai Case, when the matter was transferred to the Colombo
High Court, it was postponed initially on two occasions. On the third occasion, the
postponement was due to the fact that a judge proficient in Tamil needed to be
appointed. 511 Thereafter, counsel for the accused requested that the appointed judge
should also be able to understand the Sinhala language as the accused had asked for a
Sinhala speaking jury 512 and consequently the judge needed “not only to be proficient
in Tamil but also be able to address the jury in Sinhala.” 513 The proceedings ended in
the acquittal of all the accused on 25 November 2002, the circumstances regarding
which are examined below.
6. De Jure Impunity
There are numerous deficiencies in the penal laws, including in relation to evidence
and criminal procedure procedures. Among the more critical of these are the absence
of a crime of enforced disappearances, resulting in the accused being prosecuted for
abductions (in the absence of proof of death) and murder in cases where the body is
traced, absence of a doctrine of command responsibility, and legal provisions and
509 Centre for Human Rights and Development, ‘Human Rights Overview, 2002,’ Sentinel, Colombo,
2002, at p. 6.
510 Collure, Raja ‘Bilingualisation of the Public Service’ in Shanthakumar, B., ed., ‘Language Rights in
Sri Lanka Enforcing Tamil as an Official Language’, Law & Society Trust, 2008, at p. 43. It is pointed
out in this same publication that a Language Audit conducted in 2006 by the non-governmental
organization, the Foundation for Co-existence (FCE) had found that the Ratnapura High Court, with a
staff of 60, did not have a single court official competent in the Tamil language, see ibid at p. 49. The
severely understaffed and under resourced Official Language Commission has acknowledged the
severe dearth of translators and has recommended that ‘a fair number’ of judges at all levels of the
judiciary be conversant in all three languages to reduce their reliance on interpreters and translators, see
ibid at p.96.
511 Centre for Human Rights and Development, ‘Issues in the News; Justice Delayed is Justice Denied,’
op.cit, at p. 17.
512 The question of jury trials in these cases is addressed immediately below.
513 Centre for Human Rights and Development, ‘Issues in the News; Justice Delayed is Justice Denied,’
op.cit, at p. 17.
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