Tamils - a Trans State Nation..

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C 

An International Bar Association Human Rights Institute Report May 2009

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Executive Summary

This is the executive summary of the report of a fact-finding mission to the Democratic Socialist Republic of Sri Lanka (‘Sri Lanka’) carried out by a high-level International Bar Association Human Rights Institute (‘IBAHRI’) delegation between 28 February and 6 March 2009. The IBAHRI’s decision to visit Sri Lanka was prompted by concerns regarding the status of the rule of law, the independence of the judiciary and the ability of the legal profession to exercise its professional duties freely. These concerns arose following reports of tensions between the executive and the judiciary regarding the execution of judgements and the ongoing non-implementation of the 17th Amendment to the Constitution, reports of an increase in threats and attacks against lawyers and the impact of Sri Lanka’s state of emergency and counter terrorism legislation on the rule of law and the administration of justice. The IBAHRI was also concerned about the situation of the media and freedom of expression following reports of murders and harassment of journalists.

The delegation comprised Lord Goodhart QC, member of the House of Lords and former Vice President of the International Commission of Jurists; Mr YeoYang Poh, barrister at law and former President of the Malaysian Bar Association; Mr Alex Wilks, IBAHRI Programme Lawyer and Ms Michelle Butler, barrister at law and mission rapporteur.

The terms of reference of the mission were:

(i) to examine the current status of lawyers and judges in Sri Lanka and their ability to carry out their professional duties freely;

(ii) to examine the legal guarantees for the effective functioning of the justice system, including the independence of the judiciary and whether these guarantees are respected in practice;

(iii) to investigate impediments, either in law or practice, that jeopardise the administration of justice and the respect for the rule of law and national and international human rights standards; and

(iv) to make recommendations with respect to the above.

The delegation met with a wide range of government officials and members of the judiciary and the attorney general’s office, the legal profession, media and civil society. Delegates also benefited from meetings with representatives of various foreign embassies and international organisations. The delegation wishes to express its sincere gratitude for the assistance and hospitality given by all those it met.

The full conclusions and recommendations of the mission are included in Chapter 7 of this report. Summary of conclusions

Many of the problems identified in the 2001 IBAHRI Report continue to affect the independence of the legal profession and the rule of law in Sri Lanka and in some respects the situation has deteriorated significantly. Judicial independence, the increase in threats and attacks against lawyers filing fundamental rights applications, representing terrorist suspects and taking anti-corruption cases, and the situation of journalists are areas of particular concern.

The courts and judiciary

The Government’s continuing failure to fully implement the 17th Amendment and re-establish the Constitutional Council has reduced public confidence in its commitment to independent institutions and the rule of law. The prompt implementation of the 17th Amendment and the re-establishment of the Constitutional Council would ensure critical independent oversight of the proper functioning of Sri Lanka’s key institutions, including the Judicial Services Commission, and resolve several of the constitutional and governance issues currently facing Sri Lanka. There is a widespread perception of the lack of independence of the judiciary, which has had a detrimental impact on the functioning of the justice system in Sri Lanka. The lack of independent oversight and practice of executive presidential discretion over judicial appointments makes the judiciary vulnerable to executive interference and jeopardises its independence.

The current procedures for disciplining and removing judges at all levels of the judiciary are in urgent need of review in order to rebuild both the morale of the judiciary and public confidence in it. The requirement for parliamentary approval for impeachment of senior judiciary by a simple majority makes it vulnerable to politicisation. The Judicial Services Commission does not have adequate safeguards to ensure the transparency and independence of its decision-making process and is not able to guarantee a fair hearing for judges and judicial officers under investigation.

The IBAHRI is disturbed by several reports of lower court judges being arbitrarily threatened with removal from the bench or with baseless disciplinary or criminal proceedings. These threats appear to have been carried out in some circumstances and have forced resignations in others.

The judiciary is currently vulnerable to two forms of political influence: from the Government and from the Chief Justice himself. The nature and degree of influence oscillates between the two and depends on the relationship between them at the time. The perception that the judiciary suffers from political influence has arisen in recent years due to the excessive influence of the Chief Justice, the apparently inconsistent jurisprudence of the Supreme Court in relation to certain issues, and through tensions between the judiciary and the executive.

Chief Justice Silva is perceived to be a domineering personality who is very much in control of all aspects of the functioning of the judiciary. As a result of his control over the listing of cases in the Supreme Court, it is commonly believed that he has used the administration of the case allocation procedure as a tool to sideline senior Supreme Court judges from hearing politically sensitive cases.

The perceived close relationship between the Chief Justice and the Government has from time to time made individual judges reluctant to return judgements which may be perceived to be critical of the executive. This may be illustrated by the scarcity of dissenting judgements during his tenure in office.

The IBAHRI is concerned that the recent expansion of the concept of the doctrine of locus standi and of the constitutional right to equality in fundamental rights cases is based on the inclination of the Chief Justice to pronounce on populist issues rather than on a sound rationalisation of legal principles. Furthermore, the apparent decline in the number of fundamental rights applications being lodged in recent years is a matter of significant concern.

The legal profession

The increase in attacks against lawyers filing fundamental rights applications, representing terrorist suspects and taking anti-corruption cases has created an escalating climate of fear amongst the legal profession which was not apparent at the time of the last visit. The threats and attacks against these lawyers are not considered to be isolated events but rather form part of a pattern of intimidation routinely expressed against members of civil society, including journalists, academics and NGO workers, who are perceived to be critical or challenging of the Government or its policies, particularly with respect to the conflict with the LTTE. The brazen nature of some of the attacks, the lack of prompt and effective investigation or prosecution, and the consequential sense of impunity surrounding these incidents, have exacerbated this climate of fear.

This has created a ‘chilling effect’ which permeates the legal profession. Lawyers are forced to consider relinquishing cases which may be perceived as politically sensitive, some are forced to leave the country for fear of their own personal safety, and others are deterred from taking up such cases. Lawyers are frequently subject to harassment by police officers, including verbal and physical threats. Bringing complaints against the police is considered to be a dangerous activity. This is a worrying indication of the deterioration in the independence of the legal profession and the rule of law in Sri Lanka over recent years.

The IBAHRI is alarmed by the article entitled ‘Who are the human rights violators?’ published on the Sri Lankan Ministry of Defence’s website, which includes the names of lawyers representing terrorist suspects and implies that they themselves are connected with terrorist activity. Apart from being misleading as to the outcome of the cases mentioned and inaccurate in other respects, the publication of this type of rhetoric on a government website is deeply inappropriate and, particularly in the current context of an increased risk of threats and attacks against lawyers, is potentially inflammatory, jeopardising the physical safety of those named.

The article also creates the impression that this represents the Government’s position on lawyers who take on such cases. The IBAHRI was assured by government representatives that the article had been removed; however, it was still accessible on the Ministry of Defence’s website at the time of writing.

The arbitrary use of contempt powers by the courts and the broad and ambiguous definitions of terrorism-related offences contained in Sri Lanka’s counter-terrorism legislation constitute further threats against the independence of the profession.

Whilst the Bar Association of Sri Lanka (BASL) has been reactive to the existence of these threats, it is clear that there is a real need for the Bar to be more proactive, not only with respect to threats to its members but also on wider rule of law issues.

It appears that at present there are gaps in the curriculum for persons training to become lawyers, in the field of human rights and in the study of English. Both areas are critical in understanding and ensuring compliance with the fundamental rights set down in the Sri Lankan Constitution, which are derived from internationally accepted standards and jurisprudence.

At present, the legal aid system in Sri Lanka does not appear to have been made fully available to those charged with terrorism-related offences. This deficiency in the provision of legal aid means that some members of Sri Lankan society, particularly those of Tamil ethnicity, are unprotected within the criminal justice system.

The media

Whilst there have been some media-related reforms which have taken place since the IBAHRI’s last visit, overall the situation with respect to freedom of expression in Sri Lanka has deteriorated significantly since 2001.

The IBAHRI is concerned by continuing governmental control and influence over the media and reiterates the conclusion of the previous visit that Sri Lanka would benefit from an independent, pluralistic media which is free from state ownership and political influence. The use of criminal law, in particular under the counter-terrorism legislation, to detain and prosecute journalists who are considered to be critical of the Government is unacceptable.

The situation regarding the physical safety of journalists has deteriorated significantly since 2001, and the IBAHRI is disturbed to hear reports of journalists who have been murdered, and many others who are consequently leaving the country. The climate of fear which presently pervades the journalistic community, particularly amongst those who express critical views on either side of the conflict, has had the effect of stifling free and open debate.

The IBAHRI regrets that no prosecutions have been forthcoming in any of the recent cases relating to the murders of journalists and is concerned that this has fostered an atmosphere of impunity amongst those responsible for these serious crimes. The combination of continued government control and interference, the use of repressive criminal legislation to prosecute journalists, and an increase in attacks against the media have had a chilling effect on freedom of expression in Sri Lanka. This has in many cases led to self-censorship – one of the most insidious forms of persecution. It is imperative for the maintenance of the rule of law and a strong democracy in Sri Lanka for Tamil, Sinhalese and English language journalists to operate freely, including conducting robust investigative reporting, without fear of retributive attack or incrimination.

The Emergency Regulations and the Prevention of Terrorism Act

The Emergency Regulations and the Prevention of Terrorism Act have a negative impact in practice on the right to freedom of expression, both for lawyers and journalists, and also impinge on several fundamental legal guarantees, in particular the principle of legality, pre-trial rights during arrest and detention and due process guarantees in criminal cases.

Many of the legislative and regulatory provisions represent such a wholesale reduction of the essence of fundamental due process guarantees that it is unlikely they are ‘strictly necessary to deal with the threat to the life of the nation’ and ‘proportionate’ in their nature and extent. The long term application of these exceptional legislative provisions has led to a significant deterioration in the rule of law and public confidence in it, and has contributed to the development of a perception of institutional impunity within the Sri Lankan legal system.

The IBAHRI was, however, heartened that all of the government representatives it met with
acknowledged that these extraordinary legislative and regulatory provisions are ‘exceptional’
measures which are intended to be repealed as soon as the armed conflict is over.