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Tamils unprotected under deteriorating Sri Lanka justice system – international lawyers

[TamilNet, Tuesday, 2 June 2009 12:10 No Comment]

Sri Lanka’s judiciary is vulnerable to political interference and counter-terrorism legislation, in particular the emergency regulations, has had a detrimental impact on basic due process guarantees as well as freedom of expression, a high-level delegation of international lawyers say. Following its fact-finding tour, a report by the International Bar Association Human Rights Institute (IBAHRI) says “Sri Lanka’s justice system, legal profession and media are all under grave threat” under the government of President President Mahinda Rajapakse, which enjoys unprecedented popularity amongst Sinhalese. “Some members of Sri Lankan society, particularly those of Tamil ethnicity, are unprotected within the criminal justice system.”

The 155-page report, entitled ‘Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka’, is wide-ranging and notes the rule of law on Sri Lanka “had deteriorated significantly” since the IBAHRI’s last visit in 2001.

“Of particular concern is the widespread perception that that the judiciary is not independent. This has led to a rapid decline of public confidence in judicial processes,” it says.

The judiciary vulnerable to two forms of political influence, from the Government and from the Chief Justice himself, the report says.

The report outlines attacks and government threats against lawyers representing defendants in terrorism trials and journalists critical of the government and the war, as well harassment of judges in “politically sensitive” cases,

The “attacks against human rights lawyers form part of a pattern of intimidation routinely expressed against members of civil society, NGOs and journalists who are perceived to be critical or challenging of the Government or its policies, particularly with respect to the conflict with the LTTE,” the report says.

“The judiciary has become increasingly vulnerable to political interference, and is concerned that Sri Lanka’s counter-terrorism legislation, in particular the emergency regulations, has had a detrimental impact on basic due process guarantees as well as freedom of expression,” it says elsewhere.

Meanwhile, “low standards in some of the institutions providing legal education in Sri Lanka, which has led to declining standards of professionalism, as well as a lack of interest in human rights or pro bono casework.”

Whilst recommending a number of changes to the Sri Lankan constitution, the IBAHRI urged that “any reform of the Constitution should be accompanied by any necessary changes to accommodate a settlement of the Tamil problem.”

“Such reforms should take into account (i) an adequate balance between central and regional government, (ii) adequate autonomy, especially in the Tamil area and (iii) the defined role of central government in the fields of defence, foreign affairs, national security, taxation and any other appropriate area,” the report said.

The IBAHRI delegation visited Sri Lanka between 28 February and 6 March 2009. Extracts from its report follow:

Tamil unprotected by judicial system

Although Sri Lanka’s Legal Aid Commission is primarily funded by donations from the United Nations Development Programme (UNDP), it “has an unwritten policy of not funding lawyers for terrorism charges brought under the Prevention of Terrorism Act and the Emergency Regulations,” the IBAHRI said.

“This policy is reportedly not acknowledged publicly as it could jeopardise continued funding of the Legal Aid Commission from the United Nations.”

Thus, Legal aid in Sri Lanka does not appear to have been made available to those charged with terrorism-related offences, the IBAHRI said.

“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.”

“[We are] alarmed by these reports, as it is precisely those individuals whose cases fall within the [PTA] and the [ER] who are most at risk of a conviction resulting from a trial process that tilts heavily in favour of the prosecution,” the IBAHRI said.

“Prima facie, this practice appears to run contrary to Article 14(3)(d) of the ICCPR and principles 2, 3 and 6 of the UN Basic Principles on the Role of Lawyers which provide for the right to free legal assistance for indigent persons in full equality and without discrimination.”

Significant Deterioration in Freedom of Expression

“Overall the situation with respect to freedom of expression in Sri Lanka has deteriorated significantly since 2001,” the IBAHRI said. “[We are] concerned by continuing governmental control and influence over the media.”

“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. … both private and state-owned organisations frequently engage in self-censorship for fear of prosecution or reprisals.”

“The Government’s influence over the media extends beyond state ownership. Sinhalese, Tamil and English language journalists all reported that there is little room within the Sri Lankan media for dissenting viewpoints on ‘sensitive issues’, due to excessive governmental control and interference.”

“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 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.”

“[T]he 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.”

“[N]o prosecutions have been forthcoming in any of the recent cases relating to the murders of journalists and … this has fostered an atmosphere of impunity amongst those responsible for these serious crimes.”

“[We are] concerned to hear accounts of other forms of governmental pressure, such as interference with the other businesses (by way of punitive taxation measures or the shutting down of those businesses) owned by particular publishers and broadcasters or the professional marginalisation of experienced journalists working within the state media who are considered to be critical of the Government.”

Attacks on lawyers & civil society escalating

“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.”

“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.”

The IBAHRI said it “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.”

Intimidation of lower court judges

“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 perception that the judiciary suffers from political influence has arisen in recent years”

“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.”

“The perceived closeness of the Chief Justice with the executive branch has made individual judges reluctant to return judgements which may be perceived to be critical of the executive.”

Politically motivated criticism of the judiciary by the executive branch has had a negative effect on the independence of the judiciary. Statements such as the one made by the President on 9 December 2008, which reminds judges about the time when the homes of certain judges were attacked and impeachment proceedings brought against them, are intimidatory and contrary to the interests of judicial independence.

“This unhealthy tug of war between the two branches of government is not a positive contribution to the rule of law in Sri Lanka.”

Declining standards

“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,” the report says.

“Low standards in some of the institutions providing legal education in Sri Lanka, which has led to declining standards of professionalism, as well as a lack of interest in human rights or pro bono casework.”

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