Sri Lankan judiciary and Tamil grievance

By Dr. S. Narapalasingam

The November 2 informative note of Tamil Information Centre (TIC) has drawn attention to the callous ways the Sri Lankan judiciary has treated minority rights. It also provides the short answer to the question that is being raised by some in the Sinhalese elite – “What are the grievances of the Tamils?” This has been previously dealt with by this commentator in earlier articles in Tamil Week. In a nutshell, these are related to the prejudiced ways the State treats them with regard to their individual and collective rights which they are entitled to as equal members of one integrated society. The scars and divisions these caused have also been no concern to the political leaders, whose main interest has been to retain or gain power by whatever means under the cloak of democracy. The Judiciary serving the Executive that is overly conscious of majority interests and concerns cannot be a guardian of minority or even human rights. (Ref. Part B. Supreme Court decision de-merging the North-East in ‘Sri Lanka: Judiciary serving the Executive detrimental to human rights’ – Asian Tribune 4 November 2006). The TIC note has cited the priority given to cases such as the temporary N-E merger and P-TOMS that hurt Tamil cause vis-à-vis those likely to cause problems to the government e.g. the establishment of High Security Zones in residential areas that resulted in the displacement of tens of thousands of civilians.

International covenants and SL court decisions

The first part of the TIC memo deals with the Supreme Court decision on the applicability of International Covenant on Civil and Political Rights (ICCPR) to the rulings of courts in Sri Lanka in the case filed by Nallaratnam Singarasa, who was “arrested on 16 July 1993 by the Sri Lankan army, along with some 150 others, in a round-up in Batticaloa District and suffered severe torture at the hands of police. His thumb print was forcibly obtained on a prepared confession in Sinhala language
which he does not understand. In September 1994, he was indicted on charges of receiving training under the Liberation Tigers of Tamil Eelam (LTTE), causing the death of army officers and conspiracy to overthrow the Sri Lankan government having attacked four military camps. His conviction before the High Court in September 1995 was based solely on the confession. He was sentenced to 50 years imprisonment. The Court of Appeal affirmed the conviction but reduced the sentence to 35 years. In January 2000 the Supreme Court refused leave to appeal. Singarasa appealed to the UN Human Rights Committee through Sri Lankan agency – Home for Human Rights”.

“In August 2004, the Human Rights Committee concluded that Singarasa’s rights under the International Covenant on Civil and Political Rights (ICCPR) had been infringed. The Committee said he was denied a fair trial and his right to review without delay were violated. By placing the burden of proof that his confession was made under duress on Singarasa, his rights were further violated. The Committee said that Sri Lanka is under obligation to provide Singarasa with an effective and appropriate remedy, including release or retrial, and compensation, and to ensure that the sections of the Prevention of Terrorism Act (PTA) that allowed such treatment is made compatible with the ICCPR”.

“Following the ruling of the Human Rights Committee, Singarasa made an application to the Supreme Court in August 2005 for a revision of the conviction and sentence in 1995”. The Supreme Court delivered judgment on 15 September 2006. Singaras’s appeal was rejected. “The Supreme Court said that in Sri Lanka, judicial power forms part of the sovereignty of the people and could be exercised in terms of the Sri Lankan Constitution only by courts established under the Constitution. The resulting position is that Singarasa cannot seek to enforce his rights through the UN Human Rights Committee (UNHR) in Geneva, which has no judicial power under the Sri Lankan Constitution. The Supreme Court said that it is the highest and final superior court in Sri Lanka and it cannot remove or change its order on the basis of the findings of the Human Rights Committee”. The SL Constitution has even denied the Human Rights of Tamils recognized by the UN. Who can expect any Tamil to embrace such an unfair constitution?

Supreme Court decision on N-E merger

Speaking in parliament on November 7, R. Sampanthan the leader of the TNA parliamentarians said that the court was wrong when it said that the Provincial Councils Act could not be amended by the President under the Public Security Ordinance and that the merger brought about by such an Amendment was invalid in law. He cited Sec 5(2)(d) of the Public Security Ordinance and Art 155 (2) of the Constitution in the Chapter dealing with Public Security, which states that the power to make Emergency Regulations under the Public Security Ordinance shall include the power to make regulations having the legal effect of over-riding or suspending the operation of the provisions of any law except the provisions of the Constitution”.

The following are some criticisms of the SC decision on the ‘temporary’ merger of the Northern and Eastern Provinces in the TIC informative note referred to at the very beginning:

• The Supreme Court refused to consider the time bar under Article 126 (2) of the Constitution, which says that any person alleging infringement of a fundamental right must apply to the Supreme Court within a month of the alleged infringement. The Emergency Regulation and the Proclamation relating to the merger was made in September 1988. The argument of the JVP lawyers was that although the 13th Amendment providing for the election of the Provincial Councils came into force on 14 November 1987, a Provincial Council for the Eastern Province has not been constituted by an election of members, because of the merger of the Northern and Eastern Provinces. They said that this denial of the franchise rights of the people is a continuing infringement of the right to equal protection guaranteed under Article 12 (1) of the Constitution.

Although the fighting has continued in Sri Lanka, there has been no obstacle in bringing an action before the Supreme Court in Colombo. In fact, thousands of fundamental rights applications have been filed over the years. This cannot be regarded as a continuing infringement after 17 years.

• Except for the period between 2002 and 2003, the violence in the north-east has continued since the North and East Provinces were merged. As a result of the violence, which included large-scale attacks on the civilian population and aerial bombardment by the security forces, hundreds of thousands of Tamils had been displaced. The Tamil position has always been that the displaced Tamils should be resettled in their home areas before a referendum can take place in the Eastern Province or the Northern Province.

• Lawyers K. Kanag-Iswaran and Batty Weerakoon appeared for four Intervenient Petitioners from the Eastern Province. They were not permitted to adequately explain the position of the Tamil people. In court, Chief Justice Sarath Silva did not allow them to appear as representing Intervenient Petitioners and told them that they can appear only as amicus curiae (advisor to court). They were told that as amicus curiae they could not submit written submissions. Further, they were given only a few minutes to make their points. Mr. Batty Weerakoon was told in no uncertain terms to sit down after three minutes. Mr. Kanag-Iswaran walked out of the court in protest. But in the judgment, the Chief Justice refers to them as lawyers for the Intervenient Petitioners, thus giving the wrong impression that the four Intervenient Petitioners were properly heard in court. Observers have no doubt that the Chief Justice acted in breach of the rules of natural justice.

The TIC memo has also drawn attention to the speed with which this case, filed by the JVP, was taken up for hearing by the Supreme Court, when there are many other cases pending for many months and some for several years. “An example of the latter is the case against the Army Commander, on the question whether he has legal authority to declare high security zones (HSZ) in the north-east. Thousands of Tamils in the north-east have been deprived of their lands, houses and other buildings, which lie within HSZs and are occupied by the security forces. Thousands of houses within the HSZs have been demolished by them. Most of these Tamils are undergoing great suffering and live in refugee camps or with relatives. They have neither been compensated for the destruction of their houses nor paid any rent for occupation by the military”.

“In the judgment, the Supreme Court speaks of the sovereignty of the people. It has no time to hear this case and alleviate the sufferings of thousand of citizens, but has time to take up and deliver quick judgments in cases which raise issues of a political nature”.

It has also drawn attention to the comments of Professor Jayadeva Uyangoda of the Colombo University on the SC decision. He has said that the Tamils will see this legal decision with far reaching political consequences as a failure on the part of the judiciary to recognize Tamil rights or demands, but, on the other hand, the judiciary in the past has not been adequately mindful of the political consequences of legal decisions, particularly in the arena of minority rights.

Wije Dias, General Secretary of the Socialist Equality Party and member of the International Editorial Board of the World Socialist Web Site (WSWS) said in his commentary November 8: “The Supreme Court decision (October 16) came amid preparations for a new round of peace talks in Geneva on the weekend of October 28-29. While the Rajapaksa government was never serious about negotiating an end to the current fighting, the ruling was a further obstacle to any discussion on a political settlement. The talks broke up without any agreement, including the date for another round. Two of the lawyers who argued the JVP’s case – H.L.de Silva PC and Gomin Dayasiri – were part of the government delegation”. The latter also shows the lack of tact in handling sensitive issues concerning minority Tamils.
Bindunuwewa Camp massacre case

In May 2005 the Supreme Court acquitted all the four accused who had been sentenced to death by the Trial-at-Bar of the High Court in the Bindunuwewa Rehabilitation Camp massacre case. Along with several others they were indicted before the court on 83 charges including the murder of 27 Tamil detainees of the Rehabilitation Camp and the attempted murder of 14 other detainees on 25th October 2000. All of them were Tamil men or boys with real or suspected links to the LTTE. The New York based Human Rights Watch in a statement issued a week after the SC ruling said this demonstrated the failure of the Sri Lankan justice system to address crimes against alleged Tamil Tiger members. “These acquittals show a shocking failure of the police and judicial system in Sri Lanka to find justice for the dead and injured from this horrific incident,” said Brad Adams, Asia Director of Human Rights watch. “As the victims were all Tamils, the government needs to move quickly to start fresh investigations and to prosecute the perpetrators, some of whom were police officers, or it will only further distance the aggrieved Tamils”. But nothing happened and the confidence in the prompt and due enforcement of law remains undermined.

Other HR issues

The Committee for the Investigation of the Disappeared said in a media release November 5 that according to evidence they had gathered, armed groups loyal to the government were responsible for numerous abductions including those who were taken for ransom. It reckoned nearly 1000 people have disappeared throughout the Island in the recent past, since war broke out. Sirithunga Jayasooriya, the Chairman of the Civil Monitoring Committee set up recently to support the distressed families had told the Sunday Times November 5: “We don’t have confidence in the Presidential Commission of Inquiry on Disappearances. This commission is just a face-saving exercise for the Government”. According to him, certain organizations are abducting people and collecting ransoms to fill their coffers while other extremist groups are carrying out a campaign of ethnic cleansing in Colombo to rid the area of Tamils. The Civil Monitoring Committee’s call for immediate action is being echoed by the people who urge that the authorities need to address these issues of human rights not tomorrow, not next week, not next month or not when the report of the Presidential Commission of Inquiry comes out, but right this minute. Again promises to take action have meant little by way of improved enforcement of law and order. The victims happen to be mainly Tamils, which gives one the feeling that this may be the reason for the lethargy.

Tamil grievance

The general grievance encompassing all grievances of the Tamils is the unequal treatment by the legislative (not in recent years), executive and judicial arms of the centralized government overly conscious of the support of the majority Sinhalese in the power struggle. It is the subjective ways decisions are made and approved enactments are implemented detrimental to the welfare of Tamils that is at the centre of Tamil grievance. Any political system is a process and if it fails to function justly over a long period, the discontented section of the citizenry will lose confidence. This is precisely what happened in the case of minority Tamils in Sri Lanka.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]

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