By Basil Fernando –
A reflection on the Report of the United Nations High Commissioner for Human Rights on Sri Lanka at the 37th Session of the Human Rights Council, 26 February–23 March 2018
The idea of good governance in Sri Lanka seems to be – to make lot of good promises and thereafter to ignore all of them. This is not only an internal policy, but this seems also to be our international policy particularly with regard to the United Nations Human Rights Council. Of course, when you do these kinds of things it is not possible to prevent it from being unnoticed. The Human Rights High Commissioner’s report on Sri Lanka this year, clearly indicates the High Commissioner has seen through both sides of that coin; that is, the ease with which Sri Lanka has agreed to whatever requests that the Council has made to it and also the ease with which all that had been agreed, has been ignored.
In fact, no Sri Lankan would, ever be surprised by this dual capacity. Anyone who knows about the dysfunctional nature of Sri Lanka’s legal system – particularly the criminal justice system – knows that these promises that are made to improve the human rights situation in Sri Lanka is simply unrealizable. The protection of human rights requires a functional legal system. Sri Lanka’s legal system is far below that requirement.
In 2017, 20th of September the Sectoral Oversight Committee on Legal Affairs (anti-corruption) and Media issued a Report “On Recommendations pertaining to the Expeditious and Efficient Administration of Criminal Justice” which was presented to the Parliament of Sri Lanka by the Chairman of the Committee Ajith Mannapperuma M.P. This report clearly pointed out that the state of the judicial system is shameful and outdated.
This Committee also pointed out that on the average a criminal trial into a serious crime takes at least 17 years to conclude. This is not about mega crimes such as mega corruption and other many heinous crimes, about which nothing has ever been done, and we can assume that in the near future nothing will be done.
The problem that the Committee was pointing out to, was what are usually called ordinary crimes such as murder, attempted murder, causing of grievous bodily harm, robbery, rape, sexual abuse of children and such other horrible things which in most countries today, would take around one year to finish – from the time of commencement of the investigations till the time of the final verdict. The Committee understood the core of the problem of the absence of criminal justice in Sri Lanka and expressed it very clearly. What the Committee said was of no surprise to any adult Sri Lankan. It is not only a lay person who knows this, but also the judges, the prosecutors, policemen, the prison officials, and above all the criminals in the country know this. For an average criminal it is a matter of joy to know that such delays is what would keep him out of a prison. But to the average citizen what it means is that if you or one of your family members becomes a victim of crime, it is rather a sad thing. However, the Democratic Socialist Republic of Sri Lanka would not think of the matter in the same way. It is a Republic in which the commitment for the eradication of crime, takes one of the least priorities.
Now let us go back to this Committee again. To the credit of the Committee, they have taken their task seriously and suggested to the Ministry of Justice that within six months from the 20th of September 2017 at least the following recommendations must be done to address the problem.
6. Steps that should be taken to strengthen the mechanism
- Steps to be taken by the Attorney General and to report by him to the Chief Justice, in order to make it imperative under Section 12 of the Judicature Act No 2 of 1978 for trial before a trial at bar – cases of corruption, declaration of assets, money laundering, fraud, criminal misappropriation, criminal breach of trust and making of fraudulent documents and other similar crimes – that exceeds the value of 5 Million Rupees.
- The Parliament should newly establish an anti-corruption High Court under Article 105 (1) (d). These High Courts should hear trials which are crimes under the existing law before three courts presided over by three High Court Judges for continuous day-to-day trials.
- Number of High Court Judges should be increased to 110 and in relation to that the Judicature Act No. 02 of 1978 should be amended.
- In order to create an environment for expediting pre-trials before the High Courts, by way of day-to-day trials, recorder judges should be appointed.
- When a trial starts, under 263(1) the Criminal Procedure Code on crimes of murder, attempted murder, rape, and child abuse, and other similar crimes, it must be made compulsory to hold trials day-to-day and genuine steps must be taken to realise this.
- 10 new High Courts must be launched for High Courts which have been recognised as having a large backlog. That is Anuradhapura, Kandy, Gampaha and Ratnapura – there must be one more extra High Court each, a new High Court should be established at Matale and 04 more High Courts in the Colombo area.
- There is a new High Court at Anuradhapura for hearing of trials on child abuse. A High Court must be established in Colombo also for hearing of trials relating to child abuse in the similar manner.
To increase the effectiveness of the work of the Attorney General’s Department
…..We made the following observations regarding the Attorney General’s Department.
a) Delays in filing indictments and the files that have gathered in the Department remain without change.
b) The tendency for capable new attorneys to not make applications when vacancies for new positions in the Department are announced. The AG has submitted several proposals in order to improve the efficiency of the Department and to regain again the prestigious position it had. (This document is annexed to this report)
c) The following proposals are made by this Committee after considering the report of the Attorney General, the facts placed by the Secretary to the Ministry of Justice on behalf of the Ministry, and the facts placed on behalf of the Sri Lanka Bar Association. These recommendations should be taken as a response to the public criticisms regarding the administration of justice relating to crimes, relating to the AGs Department and the Government and as such these recommendations should be considered as having national significance and the Committee recommends that these be implemented without delay.
- The salaries of all the officials of the Attorney General’s Department should be revised urgently and steps should be taken to retain the competent and experienced officers; job attraction which will enable the recruitment of competent officers should be created. Recommendations to this effect has been made to the Government earlier but hey have not been implemented. (The decision of the Committee was that the salary of a state counsel at the time of recruitment should be in terms of the circular No 5/2016 of State Administrative Services Department one step below the salary scale of a Magistrates as per circular JS/1.
- The approved number of positions for state counsels should be increased from 118 to 218 – 50 of the 100 new appointments should be made by January 2018 and the other 50 by 2018 May/June and 2019 January recruiting 25 persons each time.
- Further to making advertisements for recruitment of new state counsel, the Attorney General must inform the Deans of the Faculties of Law and the Principal of the Sri Lanka Law College that those who graduate with law degrees in the universities and pass the final year examinations in the Law College with an honours/merit pass, to be called upon for interviews for the recruitment as state counsel.
- For all High Courts where more than 50 indictments are still pending new state counsel should be appointed besides the state counsel who is already serving.
- For all the offices of the Attorney General’s Department, throughout the island besides the serving office assistant another office assistant, stenographer and court clerk should be appointed.
- As the new building for the Attorney General’s Department is to be completed by April 2019, till the new building is completed, an appropriate building should be rented out in the Hulftsdorp area which could accommodate 100 officers and in such a building there should be space to comfortably accommodate for official purposes maximum of 02 state counsel in an office room.
- In order to provide more efficiently for the security all the officers of the Attorney General’s Department should be provided with an official car.
- For the purpose of greater efficiency of the Department’s administrative services, an Information Technology Unit must be established within the Attorney General’s Department.
- An officer of the Sri Lanka Administrative services should be made available to work under the supervision of the Senior State Counsel of the Attorney General’s Department.
- Steps must be taken to provide for systematic and adequate post graduate studies for the officers of the Attorney General’s Department.
Further to the above measures, it is also recommended that attention of the Ministry of Justice should be drawn to the Attorney General’s Report dated 30.08.2017. It should specially be remembered that Attorney General’s Department is not just one more Government Department and the facilities and the environment necessary for it to carry out its special responsibilities should be the obligation of the State. We also like to point out that the Central Bank of Sri Lanka, the Parliament and similar institutions with special responsibilities have been provided with special allowances and provided with special facilities. We wish to state that raising the Attorney General’s Department to a special position as the above can easily be justified.
Seeking a solution to the scarcity of stenographers which is one of the reasons for the delays in courts and for continuous hearing of cases.
…..we make the following recommendations and also recommend that these solutions must be implemented within the coming six months.
- In relation to for qualifications for recruitment instead of the present requirement of a credit pass in mathematics, replace with an ordinary pass.
- As stenographers could be regarded as skilled labourers their salaries must be raised to MT/2/2016 Salary scale.
- Raise the age limit for recruitment to 45 years. Create the possibility of recruiting unskilled labourers for stenographers’ positions contract basis of day –to day payments – and later when they get trained raise their positions to permanent basis giving priority of place for the recruits who were recruited earlier on contract basis.
- Recruiting retired stenographers on an urgent basis with encouragement of providing a small ( sulu dimanawak) allowance
- Starting in a government’s technical college – study courses for stenographers.
Recommendations for making the work of the Commissions on Bribery and Corruption efficient.
After the inquiries by the Commission for Bribery and Corruption, in the past 23 years, the accused have been found guilty for the crime of “corruption” only on three occasions. It must be said that this is a sad reflection of the manner in which the Commission works at present and also about its powers. Absence of competent lawyers in the Commission has been recognised as a serious problem. Besides, no local legislation has been instituted in order to incorporate into the Sri Lankan Law, the provisions of the United Nations Convention on Corruption.
[Excerpt from an unofficial translation of the original report in Sinhala]
Reclaiming the wealth that has been acquired through crimes
The law for reclaiming by the state the wealth that has been acquired through crimes should be considered a national priority and should be passed urgently. Further, the Ministry of Justice must accept as a responsibility to introduce a new law on the above mentioned matters and amendment of other regulations and put into effect on an urgent basis.
The Ministry of Justice should be responsible to place before the parliament within two weeks the assessment of allocations necessary for the implementation of the above mentioned recommendations.
This Committee will take steps to place before the Minister responsible for this subject the Minister of Justice, His Excellency the Prime Minster and His Excellency the President.
At the same time it is the responsibility of the Ministry of Justice to take all steps to implement all the recommendations completely within six months of placing of this report before the Parliament.
The Committee will fortnightly monitor and review the progress of the implementation of this report. …”
Low priority for crime prevention
Well, the due date by which all these things were expected to happen is the 20th of March 2018! Up till now, there is no sign of anything happening.
What kind of human rights protection could you expect from any government that ascribes such a low priority to eradicate the most serious threat to life and liberty and the honour of women and children?
Human Rights protection is not about a great pie in the skies. It is about very simple things; like protecting people from murder, robbery, theft, rape and child abuse, and of course from dangerous drugs.
Why are these elementary things, matters of least importance in the Republic of Sri Lanka? There may be many explanations, but there is one explanation which stands out. This is that a serious policy for eradication of crime is very dangerous to many people who occupy high positions and also to those who make their money, thanks to low priority given to crime elimination.
That is the reality of the Sri Lankan nation. People have got used to it. And “people prefer” to sacrifice their own lives and liberties so that criminals can thrive.
This perhaps is the reality that the High Commissioner for Human Rights should spend forty days in quiet meditation on, if he wants his words to carry some significance – as it should – since he is speaking on behalf of the highest human rights body in the world.