By Kishali Pinto Jayawardene | The Sunday Times
It is necessary first to give some background to this discussion. Under the shrewd direction of then Foreign Affairs Minister the late Lakshman Kadirgamar, Sri Lanka was a frontrunner in the South Asian subcontinent in acceding to the First Optional Protocol to the International Covenant on Civil and Political Rights in the late 1990's. This was a deliberate policy decision meant to signal to the world that Sri Lanka had nothing to hide and that constructive criticism, if it is for the betterment of its own citizens, would be gladly accepted.
Shrewd foreign affairs policy at one time
The Protocol allows persons subject to the jurisdiction of that State to bring an individual communication before the UN Committee alleging a violation of Covenant rights provided that domestic remedies have been exhausted and the matter is not before any other international procedure.
The Committee, (unlike in the case of the United Nations Human Rights Council), is comprised of jurists having no loyalty towards a particular country or state policy but who are selected on the basis of their proven professional and legal competence.
Threats to the domestic judiciary
Interestingly, the Individual Communications procedure was actually not resorted to very much initially. Despite all its turbulence during 1998 and most of 1999, the country's judiciary was, by and large, acknowledged as having the capacity and the independence to respond to allegations of rights violations, even if this meant antagonizing the executive. It was only after then Attorney General Sarath Silva was appointed to the office of Chief Justice by former President Chandrika Kumaratunge in late 1999, heralding what became the veritable twilight of the independence of Sri Lanka's judiciary, that more and more Individual Communications gradually came to be filed in Geneva.
During the years that followed, the Committee handed down more than eleven Views recommending reform of laws as well as urging the judiciary to better balance its constitutional role. Some of these non binding opinions scrutinized direct decisions of the then Chief Justice in respect of the procedure and sentencing in cases of contempt and the arbitrary and intemperate dismissals of lower court judges by the Judicial Service Commission.
None of these Views were implemented by the various governments in power, including during the brief period of the United National Front administration. Even a most salutary recommendation to enact a Contempt of Court Act was ignored.
The Committee's Views were in response to various pleas filed by, among others, a parliamentarian, a journalist, several detainees, a lay teacher of English convicted of contempt of court by the Supreme Court, a judicial officer and several victims of torture. Apart from the successful applications, there were many others which were rejected on procedural grounds as well as applications which were dismissed on their merits.
Unsurprisingly, a Divisional Bench of the Supreme Court presided over by the retired Chief Justice Sarath Silva ruled in the Singarasa Case (2006), that the Views of the Committee had no force or effect in Sri Lanka. The Court also held, quite contestably, that Sri Lanka's very accession to the Protocol was unconstitutional. This was based on an assumption that the UN Committee exercises judicial power within Sri Lanka's territorial boundaries which however, was patently not the case. In any event and in consequence, the far sighted policy reasoning which had led Sri Lanka to accede to the Protocol was wholly negated.
Factual context to latest Communication of Views
But the filing of individual applications before the Committee did not cease as a result of the Singarasa decision. Increasingly the applications had a monotonous tone to them, with the common thread being the general impunity afforded to perpetrators, whether in North, East, South or West (broadly speaking). Pathmini Pieris's complaint filed on 6th February 2009 was distinctly in line with this trend. She and her deceased husband had run foul of police officers of the Negombo police station including a Headquarters Inspector and a Senior Superintendent of Police. A complaint had been filed by them accusing a senior police officer of bribery at the then functional National Police Commission, the Human Rights Commission and the Bribery Commission but no action followed.
Angered police officers meanwhile repeatedly threatened, intimidated and asked them to withdraw the complaint. The applicant's husband was told in no uncertain terms that he would be killed if he persisted in the complaint. At one point, on a routine visit to the police station, the husband, wife and ten year old son were mercilessly kicked and assaulted with obscene behavior being directed towards the daughter. Again, the complaints had no impact.
In desperation, they decided to file a fundamental rights case in the Supreme Court in 2007 which was still pending at the time that the individual communication was filed before the Committee. Thereafter the intensity of the threats increased and in late September 2008, the applicant's husband was shot at point blank range when they were sitting inside their lorry at Dalupotha Junction. He was declared dead on arrival at the hospital.
State under a duty to investigate and prosecute
In concluding the complaint in favour of the applicant (October 26th 2011), the Committee observed that the State was under a strict duty to effectively investigate and prosecute in all cases of violations of life, regardless of who the alleged perpetrators are. Despite several pleas for witness protection, no action had been taken by state authorities. No effective investigation was done. It was opined that the facts before it 'reveal that the death of the author's husband must be held attributable to the State party itself'. In concluding that there had been multiple violations of Covenant rights, the State was asked to bring the perpetrators of the murder to justice or find itself in breach of the Covenant.
But inevitably this Communication, like all the others, would be ignored, no doubt. However, whether the call stems from international juristic bodies, our own judicial institutions, fact finding processes such as the Lessons Learnt and Reconciliation Commission (LLRC) or general public opinion, the message to the government is clear and consistent. It must abide by its constitutional and statutory duty to ensure that Sri Lanka's justice institutions effectively investigate and prosecute violations of the law. Until this duty is met, this outcry will certainly persist to our detriment.
© The Sunday Times