Untitled - International Commission of Jurists

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process and commissions of inquiry through malfeasance as well as institutional failings. 2. Emergency and Security Measures Sri Lanka has been in an almost constant ‘state of emergency’ since 1971. Emergency law remains in force today even after active fighting between the LTTE and government forces ceased in May 2009. Under this emergency regime, normal guarantees of fundamental rights have been progressively eroded through the misuse of exceptional powers granted under the PSO, the PTA and their implementing regulations. These exceptional powers facilitated an enabling environment for gross violations such as enforced disappearances. The army was authorized to dispose of bodies without post mortem or inquest. Confessions were admitted in court provided that they are made to a police officer above the rank of an Assistant Superintendent of Police (ASP), with the burden being put on the accused to prove that they are not voluntary. The 1982 Indemnity Act No. 20 is emblematic of the growth of a culture of de jure impunity in the early 1980s under a Parliament stewarded by first Executive President under the 1978 Constitution, J.R. Jayawardene. This Act provided immunity in respect of certain acts and matters done or purported to be done with a view to restoring law and order during the turbulent period of 1 to 31 August, 1977. Persons so indemnified included Ministers, Deputy Ministers, officers of the services, police officers and indeed ‘any person acting in good faith under the authority of a direction of a Minister, Deputy Minister or a person holding office.’ Acts done in the execution of duty, enforcement of law and order, for the public safety ‘or otherwise in the public interest’ were indemnified. The period during which this wide-ranging indemnity applied was extended to 16 December, 1988 by the Indemnity Amendment Act No. 60 of 1988. 52 “There was much opposition in the country to the proposed indemnity. The Bar Association of Sri Lanka characterized it as ‘Making Criminal Acts lawful’. “Don’t make laws to suit some individuals, this only encourages acts of personal revenge. It is we who will suffer’ says a Local Government councillor introducing a condemnatory resolution at the council.” 53 The currently applicable emergency regulations, particularly 2005 and 2006 regulations, 54 reinforce this decades-long practice of facilitating abuses by allowing arbitrary arrests without the condition of prompt production before a magistrate. 52 Amnesty International, ‘Sri Lanka, Implementation of the Recommendations of the UN Working Group on Enforced or Involuntary Disappearances following their visits to Sri Lanka in 1991 and 1992’, AI Index, ASA/37/04/98, February 1998, at p. 9. The Government’s defence was that the provisions of this Act were never actually implemented. However, the message that the law conveyed to the military/police establishment in regard to the laxity with which human rights abuses would be viewed, was unmistakable. Section 26 of the PTA contains similar impunity provisions generally. 53 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at p. 62. 54 See; Emergency (Miscellaneous Provisions and Powers) Regulation No 1. of 2005 as contained in Gazette No 1405/14 (EMPPR 2005) and the Emergency (Prevention and Prohibition of Terrorism and Specified Terrorist Activities) Regulation No 7 of 2006 as contained in Gazette No 1474/5, 06.12.2006 (Emergency Regulations, 2006). 31
Reasons need not be given for arrest. Regulation 21(1) of EMPPR 2005 stipulates that persons arrested in terms of Regulation 19 (preventive detention) should be produced before a Magistrate “within a reasonable time having regard to the circumstances of such case and in any event, not later than thirty days from the date of such arrest.” To appreciate the deviation that this represents from normal law, it is worth noting that the Code of Criminal Procedure Act No 15 of 1979 (as amended) which prescribes that production of a person arrested before a Magistrate having jurisdiction in the case should be without unnecessary delay (Section 36) and that such period shall not exceed twenty-four hours exclusive of the journey from the place of arrest to the Magistrate (Section 37). Suspects may be kept in preventive detention under the current emergency regulations up to one year. In practice, they are often kept for much longer periods of time. A similar permissibility is evident in the PTA. 55 Incommunicado detention in unauthorised ‘places of detention’ 56 is a pervasive feature of this legal regime. The admissibility of confessions continues to be allowed even though, given the circumstances in which confessions are often extracted in secret and as a result of torture, it is virtually impossible for the accused to prove that the confessionary statements were not voluntary. These emergency regulations and provisions of emergency law violate international standards relating to the protection of life and liberty. 57 Moreover, they afford cover to abusers by immunity for actions taken under the emergency 58 in a continuation of the same political intention that propelled the Indemnity Act in the 1970’s and 1980’s. Sri Lanka has been in almost a constant state of emergency since 1971. These are fundamental and vexing questions for Sri Lanka’s judiciary, just as counter-terrorism measures have challenged judicial institutions globally. International human rights law to which Sri Lanka is bound allows states to respond to security threats effectively, including the right to limit and suspend certain rights in a state of emergency while other rights remain non-derogable, but it also requires the maintenance of the rule of law. A state of emergency should be an extension of the rule of law in difficult circumstance, and not an abrogation of it. The ICJ Berlin 55 Section 7(1) of the PTA states that suspects arrested under Section 6(1) (“connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity”) may be kept in police custody for a period of seventy-two hours. Thereafter, if a preventive detention order under Section 9 has not been made, such suspect should be taken before a Magistrate, who is then compulsorily (“shall”) required to remand the suspect until the conclusion of the trial. In the case of preventive detention orders are made under Section 9 of the PTA by the Defence Secretary, the suspect may be kept for a period of eighteen months with detention orders being extended three months at a time. 56 “Places of detention” authorised by the Inspector General of Police (EMPPR 2005 19(3) in which suspects may be detained must be distinguished from reference to the regular prisons but as having a wider ambit, including police stations or unauthorised and undisclosed detention centres. 57 International Commission of Jurists: Sri Lanka Briefing Paper; Emergency Laws and International Standards, April 2009. 58 Regulation 19 of Emergency Regulations 2006 provides immunity for actions taken under the Regulations: “No action or suit shall lie against any Public Servant or any other person specifically authorized by the Government of Sri Lanka to take action in terms of these Regulations, provided that such person has acted in good faith and in the discharge of his official duties.” Similar immunity provisions are contained in Regulation 73 of the EMPPR 2005, and the PSO (Sections 9 and 23) and the PTA (Section 26). 32
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 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
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
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Interdiction from service of allege
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The Batalanda Commission recommende
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3.3.3. The Bindunuwewa Commission D
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ecommendation to this effect by the
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As of 31 December 2000, according t
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much affected by the awareness that
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Chapter Four - Evaluating Sri Lanka
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pattern of harms, to recommend meas
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justified and spelled out in the ma
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against any particular soldier or s
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analysis, these pillars of the judi
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competence. Their findings must be
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Regardless of the amendment however
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It was recorded by at least some of
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6.4. Affording alleged perpetrators
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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