Untitled - International Commission of Jurists

4. Limitations of the Law
At the level of the criminal law, due to the fact that involuntary or enforced
disappearance does not constitute a crime in the Penal Code, the prosecution has had
to rely on ordinary criminal offences such as abduction, abetment and conspiracy in
order to file indictments. Proving these offences in situations of conflict has been
immeasurably difficult. The non-incorporation of the doctrine of command
responsibility in the criminal law has also been a serious fetter. Prosecutions on the
basis of ‘culpable omission’, as found in prevailing penal law provisions, have not
been effective. Interestingly, the Supreme Court has generally affirmed the doctrine of
‘vicarious responsibility’ in the context of its fundamental rights jurisdiction, even in
regard to the working of emergency regulations. However, the extension of this
doctrine to command responsibility in conflict situations has not been evidenced. The
reform of the criminal law and prosecutions affirming the responsibilities of senior
officers in situations of war, rather than the scattered trials of junior officers, is
therefore imperative.
The irony of the status quo is that while grave human rights abuses are allowed,
sanctioned and indeed, encouraged under extraordinary emergency laws, the manner
of bringing to book those who commit abuses continues to be governed by archaic
provisions of criminal law and criminal procedure, the provisions of which remain
unsuited for modern day demands of accountability. The fact that acquittals often
result in prosecutions of grave human rights violations is therefore not surprising. The
perverse combination of extraordinary emergency laws in the modern age of counterterrorism
with the anachronism of Sri Lanka’s criminal justice system must be
addressed if principles of human rights and rule of law are to have any meaning in Sri
Lanka.
5. Limitations of the prosecutorial process
The lack of political will to prosecute grave human rights violations is evidenced in
the systematic patterns of non-indictments, acquittals/withdrawals, absence of appeals
from acquittals and inadequate sentencing policy in respect of prosecutions of grave
human rights violations that this research investigates.
The Department of the Attorney General has been coloured by clear patterns of
politicization, particularly where the State is alleged to have committed a human
rights violation that constitutes a crime under international law. Some activists have
called for the establishment of a Prosecutor General’s office, with a team of dedicated
investigators and lawyers at its command. This is based on the reasoning that the
investigative function must be legally supervised and that the prosecutorial role must
be separated from the office of the Attorney General. However, guaranteeing the
independence of such an extraordinary office is by no means assured. Even if the
appointment is made by Parliament and the financial independence of the office is
secured by payment from the Consolidated Fund as suggested by some past
commissions of inquiry, earlier efforts towards securing the independence of such
extraordinary offices have been singularly unsuccessful.
There is little doubt, however, that the prevailing system needs to be radically
overhauled. Presently, there is no dedicated team of police officers entrusted with an
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