Torture is a political product

Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

In Sri Lanka, the Philippines, Cambodia, Burma, Thailand, Indonesia, Bangladesh, Nepal, Malaysia, Pakistan, India, China, Vietnam, and the Maldives torture remains the primary mode of criminal investigation. In all these countries, the image of the police officer is that of a tyrant and a torturer. In times of conflict, the military also engages in extraordinary forms of torture; the police engage in torture in times of both peace and conflict.

The political establishments of these countries tolerate torture and often directly approve of it. The ratification of United Nations human rights treaties makes no difference to the actual business of using the police as an instrument of brutality. The gap between the ideals proclaimed in constitutions and by way of signatures to UN human rights conventions and the day-to-day reality of the routine use of torture is as wide as ever. The legislatures and judiciaries of these countries have been unable to take firm stands to reform and modernize their police forces. Thus, torture remains an indispensable part of criminal inquiries.

Sadly, the spokespersons and representatives of morality and ethics in these societies have also failed to make any noticeable attempts to stand firmly against the use of torture. Their talk of love, compassion, brotherhood and sisterhood and loving kindness is not associated with abhorrence for the use of torture by their law enforcement agencies. Moral and ethical education of youth takes place in an environment in which torture is not considered an unacceptable practice.

A search for the causes of resistance to reform of the police reveals abuse of power and corruption. The police are the very backbone of the skeleton that supports these practices. The politics of abuse of power and corruption resist reform and more

This article consists of the edited text from a series of weekly commentaries, entitled Burning Points, written for UPI Asia Online. All of the original columns, and others, can be read on the UPI website: www.upiasiaonline.com/human_rights.

rational forms of government that would be accountable to the people. The police are the guardians of abusive and corrupt practices that powerful people also seek to maintain.

Under these circumstances demands to eliminate torture, whether from local or international groups, are meaningless unless accompanied by uncompromising calls for police reform. The elimination of torture and modernization of police are two sides of the same coin. To democratize a society, its police must be democratized. To establish the rule of law in a society, the police must be made to abide by the law.

Thus the greatest challenge to the human rights community is the elimination of torture, without which the concept of human rights is itself meaningless. And concomitantly, unless the human rights community makes police reforms central to its agenda, human rights will have little appeal to the populations of countries afflicted by bad policing and torture.

Tribute to a courageous woman

Amitha Priyanthi was a carefree young girl until a fateful day in June 2000 when her brother Lasantha Jagath Kumara was arrested by the Payagala police and tortured. He later succumbed to his injuries and died while in remand prison.

That day altered Amitha’s life for years to come: she would move from police station to police station, from court to court, from one medical council session to another in search of justice. Almost everyone predicted that she was just beating her head against the wall and that she was ruining her own life; everyone except some human rights defenders who came to her assistance. Her opponents—powerful police officers and even some members of the legal and medical professions—ridiculed her. However, Amitha has now left some powerful impressions on the ordinary folk about the power of the powerless when they persistently seek justice.

In August 2003, she succeeded in the case she pursued in the Supreme Court through support for her widowed sister-in- law. It created a precedent regarding the rights of the next of kin to seek redress through a fundamental rights application before the court, which held that the police were responsible for torturing her brother and granted compensation to the widow and child from their marriage.

Screen Shot 2015-12-10 at 4.02.24 PMAt the end of July 2007, Amitha had an even more significant victory. The Sri Lanka Medical Council, after several years of inquiries, held that the doctor before whom her brother was produced by the police and who issued a health clearance certificate for him, W. R. Piyasoma, was guilty of malpractice. “The manner in which Dr. Piyasoma has failed to discharge his obligation in this case would undoubtedly shake the conscience of fellow medical men and was disgraceful and dishonorable as a medical practitioner,” the committee stated. It added that it was of

Unless the human rights community makes police reforms central to its agenda, human rights will have little appeal to the populations of countries afflicted by bad policing and torture

the view that had Piyasoma taken adequate precautions it is very likely that he could have saved the life of the victim. It concluded that although it should permanently erase Piyasoma’s name from the medical register, considering his age and that this ethical breach was his first indiscretion, it directed the registrar of the Medical Council to suspend him for only three years. The council also commented negatively on another medical professor who came before the committee as an expert witness, stating that he had not been impartial.

Amitha Priyanthi’s seven years of struggle was motivated by a thirst for justice and need to assert the dignity of a human being who was callously and inhumanely killed inside a police station by officers of the state who were supposedly there to safeguard his rights.

There are literally tens of thousands of victims like Lasantha in Sri Lanka. Most of the relatives of these victims do not have the endurance, stamina and perseverance of Amitha Priyanthi. But where others have given up, she continued her struggle on behalf of her brother; however, the benefits of her struggle will be felt by all.

Her fight is still not over. The attorney general’s department is yet to file charges against the police officers responsible for the murder. Amitha has kept up her vigil, but it is yet to be seen whether the country’s prosecutors are capable of responding to her demands for justice. During the last few years, the department has not shown much sympathy for her struggle. The longer it delays, the more shame it will face over the denial of justice. Meanwhile, Amitha is also pursuing a case before a district court in a civil claim against the perpetrators of the murder.

Amitha is not from the country’s elite. She does not have the affluence or sophistication of its members, but her courage surpasses that of big-talking lawyers, judges and others who have claimed that the country has had a modern justice system for more than 200 years. For all those years, how many Amitha Priyanthis has the country produced? Not many. Thus we must pay her tribute for demonstrating the possibility of achieving justice in Sri Lanka. In circumstances so dismal, she is preserving hope for a more honourable society.

Policing with unskilled labour

Proper criminal investigations require “skilled labour”. Investigators require adequate general education as well as competence in various fields. They need developed communication skills and the ability to understand complex problems. They must be able to develop strategies to detect crimes and gather evidence that can be presented in court.

However, in most Asian countries the main investigation methodology is the use of torture. This is the result of investigations by persons who do not have adequate competence for the job. Unskilled labour responds to its obligations by use of force to satisfy their superiors as well as political leaders who want results.

Unskilled labour predominates mainly due to inadequate financial allocations for the proper education and training of police staff. Poor pay also cannot attract talent. However, why don’t senior law-enforcement officials take the matter more seriously? Perhaps one reason is corruption. Competent individuals would want do their jobs without interference and could resist attempts to absorb them into a system of corruption. Incompetent personnel at lower levels, by contrast, do not challenge the positions and practices of their seniors.

Political leaders who profit from corrupt systems also do not want significant changes toward a more competent criminal justice system for the same reasons. As long as the justice system has its own internal contradictions it will not challenge the inadequacies of the political system. Ironically, unskilled police officers protect unskilled political institutions.

The contradiction lies in the system’s efforts to protect the rights of people on one hand and protect the corrupted political system on the other. If citizens’ rights are to be protected by competent officers, political leaders must agree to reform the political system. However, what actually takes place is the opposite of this situation.

In some countries, such as Sri Lanka, the rate of successful prosecution is only four per cent. However, in countries where it is not possible for the accused to withdraw a confession, the rate of conviction may be higher. In these countries human rights activists and observers complain that there are large numbers of people in prisons who are in fact innocent. The state is often unwilling to probe allegations of torture as well as reports about how many innocent people are in prison.

When states are criticized for violations of rights, such as the use of torture, custodial deaths and even forced disappearances by police officers and others in the security apparatus, the political leaders of the country are faced with a dilemma: if they improve human rights they face a revolt by the police; if they do not improve human rights they face criticism locally and internationally.

Often political leaders try to resolve this dilemma by aggressively attacking critics of the country’s human rights record. These political leaders believe they can better succeed in silencing critics than in reforming a defective criminal investigation system. Thus political leaders become apologists for the unskilled labour that is an obstacle to change.

Police torturers imprisoned

An inspector of police and a police constable accused of torturing a 25-year-old woman, Angalin Roshana Michael, were in July 2007 sentenced to seven years of rigorous imprisonment and a for the job. Unskilled labour responds to its obligations by use of force to satisfy their superiors as well as political leaders who want results.

Unskilled labour predominates mainly due to inadequate financial allocations for the proper education and training of police staff. Poor pay also cannot attract talent. However, why don’t senior law-enforcement officials take the matter more seriously? Perhaps one reason is corruption. Competent individuals would want do their jobs without interference and could resist attempts to absorb them into a system of corruption. Incompetent personnel at lower levels, by contrast, do not challenge the positions and practices of their seniors.

Political leaders who profit from corrupt systems also do not want significant changes toward a more competent criminal justice system for the same reasons. As long as the justice system has its own internal contradictions it will not challenge the inadequacies of the political system. Ironically, unskilled police officers protect unskilled political institutions.

The contradiction lies in the system’s efforts to protect the rights of people on one hand and protect the corrupted political system on the other. If citizens’ rights are to be protected by competent officers, political leaders must agree to reform the political system. However, what actually takes place is the opposite of this situation.

In some countries, such as Sri Lanka, the rate of successful prosecution is only four per cent. However, in countries where it is not possible for the accused to withdraw a confession, the rate of conviction may be higher. In these countries human rights activists and observers complain that there are large numbers of people in prisons who are in fact innocent. The state is often unwilling to probe allegations of torture as well as reports about how many innocent people are in prison.

When states are criticized for violations of rights, such as the use of torture, custodial deaths and even forced disappearances by police officers and others in the security apparatus, the political leaders of the country are faced with a dilemma: if they improve human rights they face a revolt by the police; if they do not improve human rights they face criticism locally and internationally.

Often political leaders try to resolve this dilemma by aggressively attacking critics of the country’s human rights record. These political leaders believe they can better succeed in silencing critics than in reforming a defective criminal investigation system. Thus political leaders become apologists for the unskilled labour that is an obstacle to change.

Police torturers imprisoned

An inspector of police and a police constable accused of torturing a 25-year-old woman, Angalin Roshana Michael, were in July 2007 sentenced to seven years of rigorous imprisonment and a fine of 10,000 rupees (USD100) in lieu of which a further one year of imprisonment would be imposed. Former officer in charge of the Crime Division at the Narahenpita police station, Police Inspector Shelton Saley, and Constable Stanley Tissera, were convicted by Colombo High Court Judge Upali Abeyratne.

Angalin Roshana had complained that she was arrested by Saley at about 8p.m. on 3 December 2000, and that she was detained in police custody until she was produced before a magistrate shortly before noon on December 5, during which time she was tortured.

The police officer had arrested her on the basis of a complaint made by an affluent family for whom she worked as a part-time domestic helper. The complainant, a lawyer, sought the help of the police over a lost gold watch valued at 500,000 rupees (USD5000) which she believed Angalin Roshana had stolen. Saley, together with the complainant, went to her house and searched the premises but was unable to find the watch. The policeman then took her to the complainant’s house, where she was held for four hours and told to find it. In court she gave evidence that she was held at the police station overnight and was threatened, beaten severely and told to reveal where the watch was hidden. Her pleas of innocence went unheard.

Thanks to her family, several people visited her while she was in custody, and she obtained legal assistance. A lawyer appearing for her when she was produced before a magistrate promptly informed the court of the torture. On the magistrate’s order, she was examined by a judicial medical officer, who issued a report which documented numerous injuries. The officer testified that they had been caused by assault with a blunt object, were about two to four days old, and were consistent with the claims of assault. The police admitted to her arrest but denied the use of torture. After almost six years, the judge held against them, and that the charges were proved beyond a reasonable doubt. It is the third ever conviction under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act, Act No. 22 of 1994.

Prior to the criminal case in the Colombo High Court, Angalin Roshana appealed to a bench of the Supreme Court, presided over by Justice Mark Fernando, which held in June 2002 that the police inspector had violated her rights and ordered compensation of 100,000 rupees (USD1000). In retaliation, the police filed charges in the magistrate’s court against her for the theft of the gold watch. However, the case was dismissed as there was no evidence.

The criminal court judgment in this case exposes some of the paradoxes in the justice system of Sri Lanka. It is quite well known that torture is endemic in the police investigation system there. Radhika Coomaraswamy, the former chairperson of the Human Rights Commission of Sri Lanka, observed while still acting in that capacity that:

Our discussions with the police and other individuals and agencies have revealed that the police had not really been trained in basic investigative skills. For some reason, the training was more of a paramilitary nature. Torture is often a shortcut to getting information; and as a result, it is systematic and widespread… We are not talking about isolated cases of rogue policemen: we are talking about the routine use of torture as a method of investigation. It requires fundamental structural changes to the police force to eradicate these practices.

Regrettably, the police hierarchy has not taken any steps to stop torture. In fact, it considers torture a necessary element in the investigation of crimes. On the other hand, the law in Sri Lanka treats it as a crime, and at least in some cases, like that of Angalin Roshana, police officers have been sent to jail for seven years for committing this offence. However, the deterrent effect that such punishment should have will not be felt when just a few officers are punished for a practice that is endemic and going on daily in police stations across Sri Lanka.

Such paradoxes can only be resolved by a conscious effort by the Ministry of Justice and Law Reforms, the judiciary and the attorney general to end the widespread use of torture in the country.

The compromised position of Sri Lanka’s attorney general

In June 2007 President Mahinda Rajapaksa went to Geneva to discuss serious allegations of human rights abuses in Sri Lanka, including abductions, forced disappearances, torture, the forced expulsion of almost 400 Tamils from Colombo, the problems of several hundred thousand internally displaced people, and the general breakdown of the rule of law in the country.

The press reported that among his entourage was C R De Silva, the newly-appointed attorney general of Sri Lanka. It is his department that has the legal obligation to prosecute all violators of human rights, and the attorney general being a part of this group thus manifests the conflicts of interest of which the department has been accused.

On June 1, the International Independent Group of Eminent Persons (IIGEP) submitted its first interim report to the president of Sri Lanka. The report contained the observations and concerns of the IIGEP about the President’s Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights. Among other things, it expressed concern about the role of the attorney general’s department as legal counsel to the commission:

The Attorney General’s Dept. is the chief legal adviser to the government of Sri Lanka. Members of the Attorney General’s Dept. have been involved in the original investigations into those cases subject to further investigation by the commission itself. As such, members of the Attorney General’s Dept. may find that they are investigating themselves. Furthermore, it is possible that they be called as material witnesses before the commission.

This critique points to one of the main causes of Sri Lanka’s inability to develop the rule of law. The rule of law requires that socially harmful behavior be criminalised through laws enacted by legislature, which are prosecuted without exception. However, in Sri Lanka prosecution without exception is a policy that the department of the attorney general has been unable to implement. The reason is that it has become an institution which is driven not by concern for law enforcement but by extraneous factors, mostly political.

If Sri Lanka is to have an effective prosecuting agency, this problem must be squarely faced and resolved through parliamentary debate. The attorney general cannot be the chief of the prosecuting branch and at the same time be the government’s spokesman. Failure to resolve the conflict of interests bedeviling this important institution will allow for further collapse of the rule of law in the country.

Who is the bully?

Sri Lanka’s Deputy Solicitor General Savindra Fernando has been quoted in the local press as stating, during celebrations of the 30th anniversary of the adoption of the Additional Protocol to the Geneva Convention, that Sri Lanka has often been bullied into signing international laws.

Fernando’s statement is surprising as it implies that if Sri Lanka has been bullied into ratifying conventions and protocols, it has therefore been bullied into respecting the rights of its citizens. If the country has a law that already provides protection for their rights, then international conventions only reaffirm the efforts already being made by the state. It is only when a state is failing to provide adequate protection to its citizens through domestic efforts that international conventions are helpful in requiring further action to be taken. Fernando is therefore not only admitting that the state is not adequately protecting its citizens’ rights, but that it is unwilling to do so and needs to be coerced.

It must be recalled that Sri Lanka is a member of the UN Human Rights Council and that in the pledge made by the government to the international community as part of its election bid to the body, it uses the fact that it is “party to all seven major human rights instruments” and several additional protocols as justification for its selection. Furthermore, the government pledges to “play an advocacy role to broad base the adherence to all seven major human rights instruments with a view to promoting human rights of all sections of society worldwide”. Here lies a deep contradiction between what the government has told the world and what Fernando has told his local audience.

At the heart of every human rights violation is an act of bullying. Violations of labour rights; unfair trials, torture—all result from abuses of power by people with official backing against people with none. And all authoritarian states throughout history have bullied their own people and deprived them of rights. So it is unfortunate, although perhaps not unpredictable, that Sri Lanka’s deputy solicitor general, who comes from the country’s chief legal office, to take the position that international efforts to ensure the protection and promotion of the rights of all should be branded as bullying, rather than branding the undeniable violations of rights that continue to take place under his watch as such.

In Sri Lanka’s recent past, particularly in 1971, the state’s ability to bully its people with the support of the heads of various departments, including that of the attorney general, had been strongly asserted. It was for a long time ruled through emergency regulations and anti-terrorism laws, with Sri Lankans’ basic rights suspended and tens of thousands of persons killed following arrest. Torture remains endemic to date.

The state is clearly not doing enough to protect its people and the need is clear for the use of international legal instruments to oblige it to refrain from bullying them further still. But the cry of sovereignty is frequently used as an excuse by repressive states against external criticism. Nationalism is also used to attack international norms and standards and to justify the state’s lack of accountability.

The deputy solicitor general has undermined the position that the Sri Lankan state has taken before the international community. He has presented Sri Lanka as a coward and in effect suggested that it is a member of the Human Rights Council as a result of being bullied into the post. If so, should it not resign from this body?

A deadline on human rights complaints

The board of the Human Rights Commission (HRC) of Sri Lanka has issued a circular prescribing a period of three months from the date of a human rights violation in which to receive petitions concerning the violation. Internal Circular No. 7 of 20 June 2007, addressed to all directors, regional coordinators, legal officers and investigation officers, signed by D J B De Silva, the secretary of the commission, reads as follows:

Period of prescription of receiving petitions

The Board at its meeting held on 18.6.2007, decided that the period of receiving petitions should be restricted to 3 (three) months from the date of incident of violation of Human Rights.

You are kindly requested to give publicity to this decision among the members of public and also abide by the above decision. The petitions already accepted should be inquired into irrespective of the date of incident.

Any exceptional matters should be referred to the Commission for decision.

This circular has not been publicized, nor has the HRC issued any press statement to inform the public of it. Only through private sources have human rights groups become aware of it. The general reaction has been that this is yet another example of a human rights commission which has not been appointed under the provisions of the constitution trying to undermine the people’s rights to obtain protection and discourage them from seeking recourse through its offices. With it, any semblance of a commission that is willing to protect and promote human rights under the extremely difficult circumstances prevailing in Sri Lanka is gone.

On hearing the news, one human rights activist commented that, “If the HRC receives fewer complaints, then it can create an impression around the world that the human rights situation in the country has become better.” International human rights groups place a great deal of reliance on the statistics provided by the HRC in trying to gauge human rights conditions in the country.

The HRC is a statutory body created for the purpose of protecting and promoting human rights and is expected to work within the framework of the Paris Principles relating to national institutions. However, in recent times it has not in any way conformed to these principles, either in regard to its independence or the implementation of international norms and standards relating to the observance of human rights by the state.

A national human rights commission is expected to monitor human rights violations and make recommendations to all government bodies on the steps that need to be taken to better respect human rights. The HRC, however, has failed to perform this function. The perpetrators of human rights violations are the beneficiaries of its inactivity and proscriptions.

There is no basis for setting time limits on complaints of torture, extrajudicial killings and forced disappearances. These are heinous crimes and gross violations of human rights. The HRC’s board has acted in violation of the basic norms and standards for the protection of human rights by imposing a limited time in which to accept complaints.

This is particularly so in Sri Lanka, where given the anxiety that prevails across the country today, there are likely to be many people who dare not make complaints immediately out of fear for their lives. The government has admitted to the absence of witness protection in the country and its adverse consequences on all witnesses. Under such circumstances, it is natural for people to wait before they make complaints. This is true of any part of the country; in conflict areas, conditions are even worse. How is it possible, for instance, for refugees and displaced people who have suffered the worst human rights abuses to honour such a deadline?

All civil society organizations in Sri Lanka should critically examine the role that the HRC is playing now. Is it a watchdog for the victims of human rights or a guard dog for the perpetrators?

Sri Lanka’s failed reforms brought civil war

The international community has become increasingly alarmed by the violence now ripping the fabric of Sri Lankan society. This concern has been marked by recent visits to Sri Lanka by Richard Boucher, the US Assistant Secretary of State for South and Central Asian affairs, and the Archbishop of Canterbury, Dr Rowan Williams, who explained his visit as an attempt to understand the suffering of people due to the war. Moreover, Sri Lanka has been a topic for discussion in the UK House of Commons.

However, study of the Sri Lankan conflict reveals that the problems could have long been addressed through democratic reforms instead of civil war.

In 1931, Sri Lanka became the first country outside the developed world to have adult franchise. This opportunity, if properly utilized, could have allowed the country to emerge as a strong democracy that would have built bonds between all communities for the benefit of every citizen.

However, the elite in the country’s two major ethnic groups, the Sinhalese and the Tamils, came from the upper castes of their communities. The caste tradition was entrenched by centuries of discriminatory practices, to the detriment of the ordinary folk among the Sinhalese and Tamils. Moreover, the leaders of the political movements that arose in Sri Lanka were psychologically disconnected from the larger sections of their own communities. They neither grasped nor assimilated the basic traditions of democracy and in fact saw democracy as a threat to their own privileged status.

Instead of formulating a national vision for the improvement of people’s lives on the basis of a state infrastructure grounded in democratic traditions, the visions of these political parties were to divert the people’s attention to ethnic and religious issues. Consequently, the nationalism that took root in Sri Lanka was not one in which better conditions were created within a framework of solid institutional development. Rather, masses were mobilized as mobs under slogans related to ethnicity and religion.

There was also a leftist element in Sri Lankan politics that in the first half of the 20th century was able to build strong support. However, even the leftists paid little attention to the development of a democratic vision or to struggles for an improved institutional framework as a foundation for the future. In fact they were ideologically opposed to democracy and often denigrated it as an imperialist ploy. Their negative approach to democracy succeeded only in reinforcing the right-wing political ideologies that diverted political attention to ethnic and religious issues.

Within a few decades, as the younger generation became alienated from the mainstream political parties, discussion shifted to armed struggle as a means of achieving change. Among the majority Sinhalese, the call for armed struggle came from the Janatha Vimukthi Peramuna (JVP) or People’s Liberation Front, under whose inspiration there were armed rebellions in 1971 and between 1987 and 1990 which caused a heavy loss of life due to the repression unleashed by the state. Meanwhile, among the Tamil community several militant groups emerged relying on armed struggle, out of which the Liberation Tigers of Tamil Eelam (LTTE) was able to occupy the north. Later other armed groups gained a degree of control in the east.

Whatever the immediate solution to halt the ongoing violence, the ultimate question will remain as to whether or not there will be any authentic vision honestly pursued to reform the country’s political, administrative and judicial structures, one capable of winning the confidence of people.

Unfortunately, none of the political parties are offering such a vision. Even political groups with bitter experiences of massive human rights abuses, such as the JVP, do not deviate from a political schema based on ethnic and cultural factors. The opposition parties as well are unwilling to give the leadership needed to initiate serious reforms.

Thus, while everyone speaks of reducing violence, there is no talk of eliminating corruption and the abuse of power. Even the limited reforms initiated by the 17th Amendment to the constitution in 2001, which attempted to introduce independent supervisory mechanisms to rid the country of inefficiency and corruption within the police, public service, judiciary and electoral process, have been abandoned.

Sri Lanka offers an example to the world of how the failure to develop a proper democratic framework can lead to civil war, and likewise, how reviving the struggle for democratic reform is the only way out. If its conflict can be approached from this point of view, the growing international interest in the country will benefit not only Sri Lankans but also serve as a useful lesson for persons trapped in other similar conflicts.

Cricket matches and killing matches

Amnesty International in April 2007 launched a campaign asking people to sign cricket balls calling on all Sri Lankans, meaning all parties to the present conflict—the government, the LTTE and other armed militant groups—to play by the rules.

In response, the Sri Lankan government has launched an advertising campaign against the move, under the pretext that the campaign may adversely affect the performance of the country’s cricket players at the World Cup.

It may strike observers as ridiculous for anyone to oppose a call to play by the rules; this behavior is, after all, what anyone should do at any given time. It should gladden the heart of a government to hear an international chorus of support for all sides to play by the same rules. To those who closely follow the behavior of both the Sri Lankan state and its opponents, however, this opposition to playing by the rules is not unusual at all.

The official ideology of several Sri Lankan governments was well expressed by the former defence minister, Ranjan Wijeratne, who when referring to the government’s violent repression of the late 1980s in parliament said that “these things cannot be done according to the law”. Using cricket jargon too, he went on to say that the government had already destroyed the “second 11” and soon would destroy the first. His meaning was that the lower ranks of the JVP had already been “terminated”—a euphemism for disappeared—and that the top leadership would soon meet the same fate. Ironically, others who believed in the same philosophy of not following the rules later killed Ranjan Wijeratne with a massive car bomb. A former president, J R Jayawardene, described the tit-for-tat murders as a “killing match”.

All parties to the conflict in Sri Lanka today consider calls for a democratic solution and a return to the rule of law to be subversive to their agendas. All attempts to raise issues relating to human rights, and even the rules of the Geneva Conventions, are considered detrimental to the fighters of all sides who are encouraged to slug it out to a bloody conclusion. Thus, in opposing Amnesty’s appeal, the government is merely echoing this wider sentiment against playing by the rules.

Human rights organizations have characterized the situation in Sri Lanka as an exceptional collapse of the rule of law. Unless the international community positively and strongly supports the people of the country, who are the only ones who seem to want to return to re-establish playing by the rules, conditions are likely to get worse. It is not enough for the international community simply to call on all Sri Lankans to play by the rules; it must assist them to make that possible.

Teenager’s possible beheading tests two justice systems

The plight of a Sri Lankan teenager facing the death sentence in Saudi Arabia has received sympathetic attention from the global media.

Rizana Nafeek, a 17-year-old girl from a village affected by both civil conflict and the tsunami disaster of December 2004, went to Saudi Arabia for employment as a domestic worker to support her impoverished family. Her initial work assignments were cleaning and other general domestic work. However, she was soon given the task of bottle-feeding her employer’s baby alone. Within 18 days of her arrival, the infant choked as Rizana was trying to feed him. Unfortunately, she did not have the experience to deal with this emergency. By the time the family members arrived, after hearing her cries for help, the child was unconscious, perhaps already dead.

The family blamed the baby’s death on the teenager and handed Rizana over to the police who, according to her, ill treated her and forced her to confess that she had strangled the infant. Since then she has been in Dawadami Prison.

During the first hearing at her trial, Rizana was made to repeat the confession that the police had coerced her to make. However, after being allowed to talk to an interpreter from the Sri Lankan embassy in Riyadh, she made a second statement to the court, narrating her version of what had really happened. On 16 June 2007, however, the court sentenced her to death by beheading on the strength of her first testimony in a trial in which she had no legal representation. She was given 30 days to file an appeal, but she had no one to help her make the appeal.

The Sri Lankan embassy in Saudi Arabia reported the case to the government and requested funds for filing the appeal. The government failed to respond, and probably the matter would have been forgotten if not for the media, particularly the BBC Sinhala service, which broke news of her case. Since then, floods of appeals have been made, including those from Amnesty International and the Asian Human Rights Commission (AHRC).

On July 11 the AHRC, on behalf of several people who have taken an interest in the appeal, deposited funds with the law firm of Kateb Fahad al-Shammari to file the appeal. The embassy is providing assistance.

The reaction of the mass media and human rights organizations around the world has caused enormous interest in this case. The death sentence passed against the accused, a child at the time of the alleged crime, has raised serious legal and moral issues: utter poverty forced the girl to seek employment in Saudi Arabia. However, within 18 days she was placed in a situation where the legal systems of neither her country of domicile nor country of origin helped her in any way. Saudi Arabia provided her with no legal assistance during the trial. The Sri Lankan government maintains that it does not have an obligation to do the same for anyone charged with a crime outside the country. Four Sri Lankans were recently executed in Saudi Arabia were similarly not provided with legal assistance during their trials by the authorities of either country.

What is really on trial is the merit of trial without legal representation. This is not a new issue. The poor are denied legal assistance most of the time, and there are many instances in which a “fair trial” is the privilege of those who can pay fees for good and reputable lawyers. The poverty that drives a young girl into employment abroad, a girl who should have been attending school, then creates the possibility that she will be beheaded. Such is the way that justice and poverty stand in contradiction to each other.

Saudi Arabia is a rich country. There is no dearth of material resources with which it could provide legal aid to people facing criminal charges, particularly in cases where the sentence may consist of capital punishment. However, the government asserts that it has no obligation to do so. Sri Lanka may not be rich, but it is not destitute. Approximately 400,000 migrant workers from Sri Lanka working in Saudi Arabia contribute annually to its foreign exchange. Despite this, the government is unwilling to meet their legal fees if they are put on trial.

The purpose of a legal system is to ensure justice. Ensuring justice requires that all parties to a case be given a fair hearing before any punishment is imposed. Imposing punishment without ensuring justice is inhumane. Inhumane systems of justice create distrust between rulers and ruled. This case is thus a test for the justice systems in both Saudi Arabia and Sri Lanka.

CORRECTION

In the April 2007 edition of article 2, (vol. 6, no. 2), a paragraph on page 13 of the article entitled “Subverted justice and the breakdown of the rule of law in Sri Lanka” by Kishali Pinto-Jayawardena was wrongly published as follows:

The Public Security Ordinance (No. 25 of 1947) was amended in 1979 to be the Prevention of Terrorism Act (PTA), which has been enforced for the decades since and has virtually eclipsed the ordinary penal laws and criminal procedure and evidence statutes.

It should have read as follows:

The Public Security Ordinance (No. 25 of 1947) as amended and the Prevention of Terrorism Act (PTA) of 1979 as amended have been enforced for the better part of the last decades and have virtually eclipsed the ordinary penal laws and criminal procedure and evidence statutes.

We apologise for any misunderstanding that may have arisen from this error.

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