Asian Legal Resource Centre, Hong Kong
Prevention of impunity requires clear leadership from the government
February 25, 2009, ALRC-CWS-10-10-2009
The Asian Legal Resource Centre welcomes the statement made by 10 UN experts on the 9 February 2009, expressing deep concern at the suppression of criticism and unabated impunity in Sri Lanka.
In the first paragraph of the statement, the 10 UN experts express special concern about:
- The shrinking space for critical voices
- The fear of reprisals against victims and witnesses A lack of effective investigations and prosecutions
- The experts state that these factors have lead to unabated impunity for human rights violations.
Shrinking space for critical voices
Attacks on the media and anyone who expresses dissent have been recorded in hundreds of reports, not only in Sri Lanka but also internationally. From January 24, 2007 up to January 8, 2009, 11 journalists have been killed and 27 assaulted according to a report published by the Sunday Leader on February 8, 2009. In addition 11 journalists have left the country. There have been numerous attacks on reporters and media institutions. The attacks on the premises of the Sunday Leader press and Sirasa TV are the two best-known examples, and have been condemned by numerous global media organisations.
However, the position of Gotabaya Rajapakse, the Secretary to the Ministry of Defense expressed in a televised interview, was that at this time, when the country is at war, dissent amounts to treason. Earlier, six former United States Ambassadors to Sri Lanka wrote to draw attention to the attacks on the media, following the assassination of Lasantha Wickrematunge.
The observations of the 10 UN experts are well founded and should have deserved a serious response from the government of Sri Lanka. What the government should have indicated was the measures that it would take in order to guarantee media freedom and to take all steps to bring the culprits of the earlier attacks to justice.
Instead, the government has withdrawn the charges against Minister Mervyn Silva, who was earlier charged in the High Court for the alleged assault on a Sirasa TV cameraman on August 6, 2008. The assault allegedly took place when a cameraman from the MTV channel (Sirasa TV) attended the ceremonial opening of an event to which the channel was invited by the government. The indictment against the minister was filed on the order of the Supreme Court. However, the Attorney General has used his powers of Nolle prosequi (Not to pursue). While the Attorney General has the power of Nolle prosequi, it is used most rarely and not for political purposes. The use of such power in a case of a physical attack on a journalist can hardly be justified on any legitimate basis. The clear message of such action is to strengthen impunity.
The fear of reprisals against victims and witnesses
The 10 UN experts state that: “A climate of fear and intimidation reigns over those defending human rights, specially over journalists and lawyers.” The safety of defenders has worsened considerably over the past year, most significantly following denunciations of human rights abuses committed by parties to the conflict, of corruption by state officials and of impunity.
The climate of fear spreads to everyone who dares to complain about any state authorities. The most glaring examples of the absence of protection to witnesses are the cases of Sugath Nishanta Fernando and his family and Gerald Perera. Both were witnesses in cases before high courts against police officers. Before they could give their testimonies they were both killed.
The case of Nishanta Fernando and his family demonstrates the highly organised manner in which reprisals against witnesses are carried out, not only by individual officers but also with the patronage of the whole policing system. Nishanta Fernando, after receiving death threats to withdraw a petition filed in the Supreme Court against 12 police officers from Negombo for severe assault on his wife, two children and himself within 24 hours, complained to the Inspector General of Police and other Sri Lankan authorities, requesting protection. He received no protection and was assassinated on September 20, 2008. Then the lives of his wife and two children came under threat and they stated to the Magistrate’s Court of Negombo that they suspected the police officers who were respondents in the Supreme Court case as the possible suspects in Nishanta’s murder. The family requested protection from the court and the police. The family insisted that they do not believe that the officers of the same police station would provide protection for them but instead would aggravate their problem. They requested special protection, preferably from the Criminal Investigation Division (CID). A lawyer appearing before the Supreme Court on the fundamental rights petition mentioned above on November 10, 2008 requested the intervention of the court.
The Supreme Court then gave directions to the Deputy Inspector General of Police of the Western Province, North, to afford special police protection. However, no action was taken to afford this protection. Instead, the Criminal Investigation Division branch at Peliyagoda, Colombo requested the petitioner make a statement to the effect that since any police officers, knowing where she is hiding, may endanger her security that she is declining to accept police protection. As the widow refused and made her position clear by way of an affidavit stating that while she does not trust the officers of the Negombo police, some of whom she suspects were responsible for her husband’s murder, she would prefer a special arrangement such as protection by the Criminal Investigation Division. On December 31, 2008, the Inspector General of Police submitted a letter stating that the petitioner has not cooperated in the matter of affording security to her and her family and that the petitioner is now seeking that the security be provided by the CID which the IGP considered was not possible, considering the distribution of work in the police force. On the basis of the IGP’s letter the Supreme Court ordered, “That in the circumstances no further action needs to be taken by the police on the basis of order dated 10/11/2008”.
The IGP’s letter dated December 31, 2008 was a distortion of the position taken up by the widow and on the basis of this distortion the police have abdicated their responsibility to provide protection.
There has not been a single instance where the police have provided any form of effective protection for someone who has sought protection. The Asian Legal Resource Centre is aware that there are many living in hiding, trying to protect themselves from state officers against whom they are witnesses in court cases. They are left to themselves to find protection. In this same case the lawyer for the widow and the human rights organisation which assisted her also received several death threats. On January 30, 2009, the office of the lawyer was burned down after he had been threatened with death two days earlier, by a police officer, in the presence of many others, at the Negombo police station.
The observations by the 10 UN experts on the protection of lawyers, journalists and witnesses are most timely. However, the government has not made any positive response to these observations. There is nothing to indicate that the government is making any attempt to change the course of denial of protection to witnesses. The witness protection law, which was introduced under severe local and international pressure, has been virtually buried. There is no indication that legislative, judicial and administrative measures required under article 2 of the ICCPR will be taken in the near future.
A lack of effective investigations and prosecutions
The 10 experts refer to the lack of effective investigations and prosecutions. The six former ambassadors also state
We urge you to take steps to reestablish accountability and the rule of law in Sri Lanka. Investigations have been promised before but have been futile. At times government officials have not appeared diligent, as happened in the investigation of the killing of NGO workers assisted by the International Eminent Persons Group.
The Sri Lankan parliament, in 2001, when discussing the 17th Amendment to the Constitution, with a rare occurrence of unanimity, was of the opinion that all of the public institutions in Sri Lanka have been politicised and therefore are unable to perform their functions as required by the law. Among the public institutions discussed was the Sri Lankan police. What is meant by politicisation is the direct interference by the government or by politicians into the workings of the public institution so as to deprive these institutions of their independence and their capacity to control themselves from within in terms of the norms and standards that they are supposed to uphold. The failure of the police to investigate crimes is a result of this politicisation. We started with the adoption of the 1978 Constitution, which replaced governance on the basis of separation of powers with an executive presidential system, which placed absolute power in a single individual without checks and balances. Prior to this period the Criminal Investigation Divisions in Sri Lanka functioned in an adequate manner even in sensitive political cases. The assassination of the Prime Minister, SWRD Bandaranaike and the attempted coup of 1962 by several leading persons in the armed forces and many cases involving powerful persons and politicians were successfully prosecuted on the basis of competent and impartial investigations conducted by the Sri Lankan police.
This tradition of investigations into crimes was disturbed by the politicisation as mentioned above. Therefore, any attempt to reform must have, as its key component, the removal of the politicisation that has spread into these institutions.
The UN experts have also highlighted the fact that thorough reforms of the general system of governance are needed to prevent the recurrence of further serious human rights violations. Such reforms are essential if it is to be made clear to the members of the security forces that discipline will be enforced and the violators will be brought to justice as pointed out by the six former US ambassadors. However, carrying that message meaningfully requires visible attempts to depoliticize public institutions and particularly the criminal investigation divisions of the police. The six former ambassadors have, in their letter addressed to the president stated that, “Only you can provide the leadership and clear direction that will make this happen.” Particularly within the framework of the 1978 Constitution only the executive president can ensure such leadership and clear direction.
Sometimes the government spokesmen take the view that the government does not have adequate capacity to investigate and to prosecute. However, experience from the time of independence up to about 1978 demonstrates that the Sri Lankan policing system has had the capacity to investigate serious crimes adequately and satisfactorily.
It cannot be reasonably argued that the murder of Sugath Nishanta Fernando, the grenade attack on the house of lawyer, JC Weliamuna, who is involved in human rights and anti graft advocacy, the attack on Keith Noyahr, the assassination of Lasantha Wickrematunge and even the serious attack on Upali Tennakoon have not been successfully investigated due to the incapacity of the Sri Lankan police investigators. In the same manner the withdrawal of the indictment against Minister Mervyn Silva regarding the alleged attack on a cameraman is not due to the incapacity of the Attorney General’s Department to prosecute.
The statement of the 10 UN experts as well as the six US ambassadors on the issues of the rule of law and the investigation and prosecution of crimes requires a serious response from the government, which should spell out a clear message that the country’s leadership wants to bring to an end the existing dangerous trend of impunity.
The abdication of the duty to investigate crimes
February 26, 2009, ALRC-CWS-10-11-2009
Every day instances are added to the list of crimes that go uninvestigated in Sri Lanka. The alleged crimes, including war crimes in the north and the east are not investigated on the grounds that a war is being fought with a ruthless terrorist organisation, the LTTE. The north and the east remain areas where those who dare to complaint about violations of rights place their lives in peril.
The instances mentioned before are from the south, mostly from Colombo and areas in the vicinity of Colombo. In some instances particular incidents are directed towards politically sensitive targets such as journalists and the media that supports the opposition. In one instance the target was the editor of a pro- government paper. In several other instances the victims were private citizens, harassed for one reason or another, or lawyers who support these citizens.
A few incidents may illustrate this situation. Lasantha Wickrematunge, who was an editor for a well-known newspaper, the Sunday Leader, for 15 years, was assassinated in broad daylight when he was shot down on the 8 January 2009. A month later the reply of the police spokesman, Mr. Gunasekara, when he was questioned about the state of the inquiry into the fatal shooting was reported thus:
However, Gunasekera on Friday told The Sunday Leader that he did not know whether the police have received the GA’s report and said that he knew nothing about the latest details of the investigation. [No real breakthrough in Lasantha investigation, The Sunday Leader, 7 February 2009]
The government has claimed that the death was due to an international conspiracy against the government to discredit it. However, no details of any such conspiracy have been revealed. On the other hand, Mr. Wickrematunge himself stated, “When I am killed it will be the government that kills me.” He also predicted that despite of public proclamations by the government of inquiries being conducted, no genuine inquiry would, in fact, be conducted nor any perpetrators brought to justice.
The editor of Rivira, identified as a pro-government newspaper, Upali Tennakoon, was brutally attacked by four persons, two of whom were carrying wooden poles, one a dagger and the other a metal staff with a sharpened end. He described the result of the attack thus:
There were several injuries on my hands. I had received them while trying to ward off the attack. There was a bone fracture in one finger of my left hand. The left side of my face, just below the eye, had received a severe blow from a wooden rod. It had fractured my facial bone. It could have been a fatal blow and caused my death, in a matter of seconds. I can now see knife marks on my body, where the knife had slid off without fatally injuring me. I had just missed a knife jab to the neck. There is only a small wound there now.
Regarding the inquiry he stated as follows:
There is no clear evidence yet, as to who had done this. In such a scenario, inevitably, the finger would be pointed at the incumbent government and the President. That doubt will remain until the real perpetrators are brought to justice. [Who wanted to kill me, The Nation, 1 February 2009]
On 6 January 2009, a group of armed men forcibly entered, attacked and caused serious damage to the MBC-MTV Transmission Station at Pannipitiya. This TV station is popularly known as Sirasa TV and transmits its programmes across the country. In the attack, which took place at around 2a.m., the intruders set the main control room on fire and then vandalized the entire complex.
Despite of many condemnations by local and international agencies and also despite of instructions by the Magistrate for the conduct of proper inquiries, no one has yet been brought to justice regarding this incident. The government alleged that the incident was an inside job for either political reasons or insurance purposes. However, despite of promises to investigate the crime nothing has happened so far. Many journalists have received death threats and harassment and a considerable number of them have left the country in recent months. Although complaints have been made no successful inquiries have been conducted into these allegations.
A similar situation also prevails regarding crimes which may not be directed towards any political purpose. Sugath Nishanta Fernando was a small businessman living in Negombo just a few kilometers north of Colombo. He was a complainant in a bribery case against a police officer. His whole family was severely assaulted to intimidate them from giving evidence in this case following which they filed a fundamental rights petition before the Supreme Court. Thereafter, the family was threatened with death within 24 hours unless the petition was withdrawn. The victim wrote to the Inspector General of Police, the National Police Commission and the Human Rights Commission of Sri Lanka asking for witness protection. He did not receive any and was assassinated on the 20th September 2008. Even to date no successful inquiry has been conducted into the crime despite of Fernando’s widow giving the names of the persons she suspected of committing the murder. She herself made complaints requesting witness protection because her life and those of her two children were in danger. However, she has received no protection and continues to live in hiding.
There were several attacks on lawyers who appear in cases of human rights abuse and bribery cases. On September 27 at 11:40pm two hand grenades were thrown at the house of JC Weliamuna, a senior lawyer. The Bar Association of Sri Lanka itself demanded investigations. However, there is no indication of any inquiry being conducted into this matter. Four lawyers have complained about their names being placed in the Ministry of Defense website as lawyers who regularly appear for alleged terrorists. The accompanying passage indicated that such a thing is an unpatriotic act thus, leaving them vulnerable to possible attacks on them. Despite of protests no inquiry has been conducted into this matter. A lawyer who received death threats on two occasions made complaints to the Inspector General of Police and the Bar Association, which in turn took up the matter with the government. His office, situated near his house was set on fire on the evening of the 30 January 2009. Extensive damage was caused to property as well as the official documents of the lawyer including title deeds and law books. However, there has been no credible inquiry into this incident. Another lawyer, Mr. Mohotti, was threatened and humiliated at the Bambilipitya Police Station and the Bar Association complained to the government. Once again, nothing has happened.
These are but a few examples. The Asian Legal Resource Centre is aware that in thousands of cases involving matters such as murder, rape and offenses relating to private property, complaints have been made but no successful inquiries have followed into these matters. There are several reasons for such failures. The Sri Lankan parliament itself has admitted the politicisation of the police force and tried to remedy it by passing the 17th Amendment to the Constitution creating an independent authority, the Constitutional Council, to intervene on all major national institutions to reestablish a system based on merit. This Constitutional amendment is now being ignored. The term politicisation means direct commands given by politicians to the police thereby seriously disrupting the internal workings of this institution. Investigations into crimes can be disrupted by direct or indirect orders not to investigate. Besides this, the long neglect of the policing system and the collapse of internal discipline due to politicisation have also opened the way for interested parties to interfere so as to disrupt the administration of justice. Thus, virtually complainants into crimes can run the risk of bringing further troubles on themselves instead of having their complaints resolved. This has created a widespread sense of insecurity and as a result there is also a widespread reluctance to complain, even about serious crimes.
The ALRC strongly supports the position taken by 10 UN experts who jointly made a statement on the 9 February 2009, the concluding paragraphs of which are quoted below. We urge the Sri Lankan government to pay heed to the severe crisis pointed out by these UN experts:
Notwithstanding the severity of the abuses in areas of conflict, the Experts wish to highlight that the problem is deeper and more endemic. The conflict deflects attention from the impunity which has been allowed to go unabated throughout Sri Lanka. The fear of reprisals against victims and witnesses, together with a lack of effective investigations and prosecutions, has led to a circle of impunity that must be broken. The Experts continue to receive disturbing reports of torture, extra-judicial killings and enforced disappearances throughout the country.
The UN experts strongly urge the Government of Sri Lanka to immediately take measures to ensure that effective remedial action can be pursued in support of the victims of human rights abuses and their families. They also highlight that thorough reforms of the general system of governance are needed to prevent the reoccurrence of further serious human rights violations. The experts call for an immediate end to impunity and to refrain from any reprisals. To strengthen the rule of law and to help ensure the safety and protection of the human rights of all persons in Sri Lanka, they continue to extend their offer of assistance to the Government.