A cruel fate for a law that promised great things

If this scarcely believable nugget of information, buried deep in paragraph 41 of the recently released Sri Lanka report of United Nations Special Rapportuer on Countering Terrorism, Ben Emmerson, that only three indictments have been filed against torture perpetrators under the Convention Against Torture Act (CAT Act, 1994) since 2010, is actually true, we should hang our heads in shame.

Hailed with hosannas but undermined

This was a law that had promised to turn Sri Lanka’s sluggish (to put it mildly) criminal justice system around from crucifying justice to delivering it. At the time of its passing, its thrust went beyond even the standard setting United Nations Convention Against Torture that it was modelled on. Its enactment was hailed with hosannas by a relieved public which had, by then, realised the State’s pervasive impunity during twin terrors of the second Southern insurrection and the ethnic conflict in the North and East. Dreadful in its impact on Sinhalese, Tamils Muslims and others, those years of terror and counter-terror had resulted in thousands of deaths of innocents, of which and cruelly enough, a fair proportion were children.

But the CAT Act depended on healthily functioning state entities for its survival, including an effective state prosecutor and a conscientious and informed judiciary. As former President Chandrika Kumaratunga’s pro-reform Government succumbed to its deepest insecurities with stunning predictability, it put into motion a train of events that devastated democratic institutions, most notably the

Supreme Court resulting in catapulting the

Office of the Chief

Justice into public controversy. Along with other and more visibly calamitous fatalities such as public respect for Sri Lanka’s judicial institution, the pioneering CAT Act was gradually undermined.

Overall, there are telling parallels to then and now. Most evidently, these arise from the manner in which civil society allowed itself to be co-opted into the ranks of apologetic defenders of the Government and how, bereft of disciplined and sagacious leadership, the once promising reform initiative floundered and sank, to give way to the unrestrained excesses of the Rajapaksa decade.

A new and shocking truth

But the fact remains that none of those responsible, ranging from those at the height of power to minions of the official and unofficial Bar who profited off that steep plunge into institutional degradation have yet owned up to their faults. Instead, we had the ‘convenient’ bogey of the Rajapaksas to blame for the terrible state that Sri Lanka found itself in. Post-2015, we saw several chameleon-like transformations with onetime blatant violators of public law rights and human rights converting themselves to rights and reconciliation champions. But this is an old lament and not one to waste time or tears over except to say that this was precisely why the ‘yahapalayana’ reform effort came to perceived very early on as lacking integrity, with political agendas driving the process.

What is new however and shocking in its hard truth is this statistic contained in the Emmerson report that only three indictments have been filed during the past seven years, given that these facts have been collected by the Special Rapportuer from state agencies during a country visit from 10-14 July 2017. If this has been misreported, it is of the utmost importance that this reference is promptly corrected by the relevant state agencies, given the highly adverse inferences that it will give rise to.

In any event, it is interesting to note that, the Human Rights Commission of Sri Lanka had stated in October 2016 that it had requested information from the AttorneyGeneral’s Department on the number of indictments filed and convictions under the Convention Against Torture Act, but ‘to date is yet to receive the requested information’ (at paragraph 6 of the HRCSL report to the United Nations Committee Against Torture during review of the fifth periodic state party report,)

Reneging on a fundamental duty

The concern on the part of the HRCSL is vested with greater significance in the light of the atrophy of the CAT Act as disclosed by the Emmerson report, the findings of which were generally focused on in these column spaces last week. The CAT Act was dysfunctional during the last decade and grave concerns arose in regard to the few convictions under it as opposed to the acquittals. But the fact remains if only three indictments have in fact, been filed in seven years, then this goes beyond dysfunctionality of the criminal justice system. In effect, it amounts to the State reneging on its most fundamental criminal justice function in the first instance.

The Special Rapportuer has attributed this worrisome statistic to the ‘discretionary power’ given by law over the filing of indictments to the Attorney General and used the term ‘unfortunate’ in that context. He has rightly pointed out that ‘victims of torture have a right to a remedy and adequate reparation for the harm they have suffered…. (where) mechanisms are ineffective or inexistent, or where official investigations are ineffective and slow to establish the facts, the right to an effective remedy and reparation remains illusory in practice, and impunity prevails’ (at paragraph 42 of the Report).

If the Sri Lanka State’s persistent claims that torture is not endemic in the country, that torturers were being dealt with effectively and that human rights protection systems were working properly are to have minimum legitimacy, then its prosecutorial record under the CAT Act must bear this out. As of now, this is assuredly not the case. And as much as special courts have been established to hear and determine corruption cases, a similar mechanism is needed for allegations of torture if the current atrophy is to be addressed.

Significant changes in impunity culture

The CAT Committee’s primary recommendation to Sri Lanka in Concluding Observations issued in late 2016 that all allegations of unlawful detention, torture, and sexual violence by are promptly, impartially, and effectively investigated by an independent body is pertinent. The independence and integrity of the prosecutorial arm is of equal importance.

Indeed, this is where the 2015 reform effort should have unrelentingly focused on. This would have obtained public support from all communities with ease. Instead we had the reform effort being swallowed in the intricacies of contested constitutional reforms carried out in politically closeted and wildly inflammatory spaces.

Regardless, there is still time to bring about signal differences in state accountability in this regard. For the sake of those looking for answers as to why they were stripped of basic human dignity for no reason at all, it is hoped that some effort is made.