A paper prepared for a seminar organised by the Dutch Lawyers for
Lawyers Foundation to be held on 15 November, 2007
Basil Fernando
I graduated from the Faculty of Law in 1972. At that time if someone
were to ask me to talk about the role of lawyers I would have had little
hesitation in setting out what role they should play. However, after so many
years thereafter, being directly or indirectly involved in trying to play that
role, I am no longer so sure about any easy answer as to what the lawyer’s role
is. Being confronted with many issues, not only in my own country but many other
countries in Asia, due to the day-to-day work of the Asian Human Rights
Commission, I find that in trying to address this issue one needs to also
address many issues of the actual context within which such a problem needs to
be discussed for it to be of practical value [1].
This of course is not to be taken as any slighting of the international norms
and standards that are associated with the role of lawyers. However, these norms
and standards need to be constantly articulated and given significance in all
discussions irrespective of the difficult circumstances that may be faced in the
practice of such norms and standards. The lawyer’s role is a primary need of any
civilised and decent society. Where lawyers are unable to play their expected
role the citizens suffer gravely. In the modern world the struggle for freedom
and equality cannot be separated from the struggle to ensure the possibility of
an independent legal profession that is able to play its role in all events
related to law in the lives of people. The lawyer’s role is very much
intertwined with the very concept of citizenship and all essential notions of
human rights.
Perhaps one of the most encouraging factors, even under extremely adverse
circumstances is demonstrated by acts of lawyers who have gone beyond their
traditional role to defend their right to ensure justice and rule of law. A
glaring example was the instance of the Chief Justice of Pakistan, Iftekhar M.
Chaudhry, being suspended from his post on the 9th March, 2007. A self-assured
General Musharraf, who has held power since a military coup in 1999, thought
that he would not have much difficulty in intimidating and obtaining Mr.
Chaudhry’s resignation. However, the general miscalculated his move. The Chief
Justice refused to resign, even despite of the fact that the general was able to
get another Supreme Court judge to take oaths as the acting Chief Justice. What
came out, remarkably, was the way in which the bar association in Pakistan and
the legal professionals in general throughout the country took to the street and
kept up an ongoing protest, evoking one of the most remarkable world events in
which the ordinary folk in Pakistan in their millions came forward to support
the lawyers struggle to protect the Chief Justice and to safeguard the
independence of the judiciary and the rule of law. The arrogant general suffered
humiliation when the Supreme Court decided that the suspension of the Chief
Justice was illegal and that he should be reinstated. Accordingly that has now
been done. The lawyers have called for a continuous struggle to bring back
constitutional governance and the rule of law [2].
This historic event in Pakistan brings up one very important factor in the
lawyers role in many parts of Asia, which I believe is also similar to many
other areas of the world where liberal democracy has not been solidly entrenched
and the functioning of institutions of justice are not intact. It has become an
absolute precondition for playing the lawyers role that the lawyers themselves
have to participate in rebuilding the very institutions which are essential for
an effective system of the administration of justice. In many places systems
suffer fundamental problems and in some instances it can be said that the basic
institutions have become dysfunctional. What is worse is instances where the
basic notions of the independence of the judiciary and fair trial are not even
acknowledged as valid ideas, and therefore, if the lawyers are to play their
role they must first engage in a protracted struggle to get such notions
accepted and to make the basic institutions of justice, particularly the
institutions of the police which play the role of criminal investigators,
prosecutors and the judiciary, developed to function in an adequate manner. Here
we have a situation in which the dancer has to make the stage on which he can
dance, and the lawyer has to create the conditions within which the people can
have the benefit of strong practices that lawyers adopt in order to ensure
equality before the law for everyone.
An understanding of the role played by the lawyers in Pakistan in recent
months and what it implies to others requires a realisation of the recent
history of the administration of justice in the country. When Pakistan was
separated from India in 1947 the constitution that was adopted was one of a
liberal democracy where the separation of powers and the independence of the
judiciary were entrenched. Under the British colonial rule a common law system
had been introduced and some advances have been made in the development of a
modern system of the administration of justice. However, the impact of this
legacy is sometimes exaggerated. The colonial power, while introducing a modern
administration of justice system, still ruled the country mainly for its own
benefit. Sufficient resources were not allocated to develop the administration
of justice to take root in the same manner as in the mother country, the United
Kingdom. Many of the problems of justice in the entire territory of India,
including modern Pakistan and Bangladesh, are a legacy of an incomplete attempt
to introduce the modern administration of justice. Some primary problems are
that the equality before law was never seriously pursued and large sections of
the Indian population did not have the benefits of a modern system of justice.
Among the more glaring examples are the untouchables, who are now known as
Dalits, women of all classes and the minorities. Some of the basic defects
remaining as a result of the British legacy are courts overloaded with work that
result in delays as long as 20 years or more. The Indian policeman is of the
primitive type who uses torture as the main instrument of criminal investigation
despite the fact that the evidence ordinance excludes the admissibility of
confessions. The Indian prosecution system also did not develop in the manner
such institutions are developed in the liberal democracies of the first world.
Legal aid and witness protection also did not develop to any adequate degree.
Pakistan inherited this whole legacy even at its inception.
However, Pakistan was to have much greater burdens. Field Marshal General
Ayub Khan staged a coup and came to power in 1958 and threw the country under
martial law until 1962. He ruled the country until March 1969. In that year
another general Yaha Khan took power which he held until 1971. After a brief
period of democracy in July, 1977 General Zia Ul Haq took power. He maintained
martial law up to 1987 and held power until August 1988. Following 11 years of
democratic rule General Pervez Musharraf took power in October 1999 and remains
in power.
From 60 years after independence, many long years have been spent under
military rule. What is the impact of military rule on the administration of
justice? It affects every core aspect of the administration of justice. Military
dictatorship and the separation of power are incompatible concepts. Thus, the
independence of the judiciary was undermined in every possible way during these
long periods of military rule. The careers of judges and lawyers were gravely
affected during these periods. Besides this, all basic institutions relating to
justice, such as policing, prosecution and the judiciary were also severely
obstructed during such periods. What is worse is how such adverse historical
events affect the memories of the people and their internal beliefs in the
possibility of obtaining justice. To say that the impact of these times on
people was to diminish their confidence in the administration of justice is very
much an understatement. It is difficult to fathom or express the vast
psychological transformations people go through when their basic institutions of
justice are destroyed in this manner. We need also to remember that for
countries like Pakistan, there had been nothing like a marshal plan to restore
what was lost and to rebuild the foundations of a decent society.
Yet even within a society so battered such a strong movement for the
independence of the judiciary and the rule of law was to emerge and become a
popular movement of great magnitude. It is this tremendous contradiction that we
see in many countries in the region. Their systems of the administration of
justice have been seriously battered for long periods of time. The very notions
of constitutionalism have been given up in many places. Many a dictator has
exhibited extraordinary ferocity in destroying all attempts to find justice or
to challenge impunity. Just take the case of Indonesia under Suharto’s regime
for about 35 years. What a devastation of society, what destruction of the
existing channels that were available to seek redress in law or justice! Yet
despite of all this there is yet enormous resilience of the people that
manifests itself in manifold ways. These manifestations are directing towards
the reestablishment of their lives within stable conditions and to have respect
for their dignity restored through functioning systems of justice. And in these
places we have lawyers struggling and we have shining examples such as Munir
Said Thalib, who is regarded as a martyr and a pioneer symbolizing the attempt
to reassert the place of justice and the role of the lawyers. Munir also gives
us some aspects about what a lawyer’s role should represent under circumstances
such as these. Like the lawyers of Pakistan, Munir and others dedicated
themselves to rebuilding the administration of justice in their country. They
have played not just the traditional role of lawyers that make representation
within avenues that are available within the administration of justice, but they
created new avenues within the system of such administration where they can play
a stronger role [3].
We see even a much worse situation as we take the example of
Cambodia. The conflicts of the ‘70s spread their malevolent
influence on this isolated country and its innocent people. The overflow of the
Vietnamese war into Cambodian territory followed by the Khmer Rouge regime
devastated the country to such an extent that it can be said that the country
was pushed back to the Stone Age. After many years of civil conflict which
further added to the loss of life, to the over one million lost earlier, the
country has been making an attempt to move towards a more stable society since
around 1993. The obstacles it has to face are beyond description. Yet we saw
within a very short time the emergence of a group of people who were initially
called public defenders and who have now been referred to as lawyers. Here too
the people are struggling hard to recreate something of a decent society where
justice is available. This is a long journey no doubt. Once again there are no
marshal plans to help these people. But the determination to create for
themselves a society with a viable administration of justice is very much
present, despite of all the obstacles imposed by the regime in power [4].
In a similar way we can also talk about East Timor and
Nepal, both of which also had United Nations Peace Missions in
the not-so-distant past. Both countries were able to overcome some long standing
conflicts and to begin to have a legitimate form of government. However, from
the point of view of the development of state institutions, both countries still
live in primitive times. In East Timor, within the few years of the
establishment of the new nation, there were conflicts that the local police were
unable to handle. Assistance had to be obtained from outside, even for policing.
Judicial institutions are being formed and many questions about the law and the
practice are still to be determined. The lawyers of former times had to function
within the Indonesian legal system which was reshaped during Suharto’s military
regime. The development of an independent legal profession is underway. Nepal on
the other hand has had a long tradition of judicial institutions and the
practice of the legal profession. However, long years of conflict have virtually
left a large part of the country without functioning legal institutions. Though
various agreements have lead to the recognition of national institutions
everywhere, the actual strength of these institutions is very low. Besides this,
there is rampant corruption within the police and the judiciary goes through its
slow pace and is often unable to executive its writs due to powerful forces that
conspire to make the judicial system ineffective. Thousands of cases of
disappearances remain pending and the likelihood of prosecutions on these and
other gross abuses of human rights are most unlikely except perhaps in a few
selected cases. Impunity is guaranteed by the weaknesses of institutions and the
dysfunctional system. Under these circumstances the lawyers struggle in many
ways to get the laws improved, institutions strengthened, legal education itself
improved and the actual possibilities of redress to be improved [5].
Now we may turn to a few countries which broadly speaking remain within the
framework of democracy and rule of law but suffer from enormous defects in the
institutional framework needed to ensure rule of law and the independence of the
judiciary. We refer to countries such as the Philippines, Bangladesh, Sri Lanka
and India. In the Philippines where externally, there is
recognition of liberal democracy and rule of law there are widespread
disappearances. The normal mode of criminal investigations by the police is
torture. The frightening effect that the torture has had on people is such that
no one is willing to come forward to make complaints about torture and to pursue
complaints against officers. All efforts in this direction by human rights
organisations and even public defenders have not resulted in the change of a
mindset which fears to complain against the country’s police or the military.
The level of intimidation that accompanies any attempts by victims of crime to
find justice is reflected by the fact that even the public defenders have to
take their own measures to protect themselves. According to the organisation of
public defenders about 80% of the public defenders out of about 1,025 persons
carry firearms for personal protection. Despite of nominal witness protection
laws there is hardly any effective witness protection available. The cases can
take very long both at the stage of investigation and at the trial and appeal
stage. People often have to spend long years in jail despite of being innocent
until their cases are finalised. It is under these circumstances that the
lawyers in the Philippines have to work. There are powerful sections of Filipino
society able to paralyze the legal system and prevent the realisation of
equality before law [6].
Thailand has been struggling to develop as a democracy for a long period of
time in which many people have sacrificed their lives to end the monarchy and
develop a form of constitutional monarchy. An important landmark in this regard
was 1932 when the country recognised an elected parliament. The country’s legal
system is a mixture of civil law, common law and German law. However, the
military in the country has held a very deep grip over all political and legal
systems and even the country’s policing has been modeled on a military style.
The concept of civilian policing is as yet unknown to Thailand. The country’s
courts reflect the rigid social stratification that exists within. Impunity is
strongly held. In 1997 the adoption of a new constitution was regarded as an
important step in the direction of greater democratisation and expansion of the
rights of the people. However, on September 19, 2006 the Thai military staged a
coup and established a military rule. Many years of achievements in democracy
was thus, thrown away. This new setup created even more restrictions on lawyers
than before. The exploitation of an insurgency in the south has also been
exploited in order to bring up strong limitations on the possibilities of
investigations into human rights abuses including disappearances, extrajudicial
killings and torture. The disappearance of the well known lawyer, Somchai
Neelaphaijit on March 12, 2004 [7] and the complete failure to ensure
justice in his case is a clear example of the manner in which the lawyers, who
work seriously to assert their role as lawyers are being treated within this
system [8].
Bangladesh separated from Pakistan in March, 1971. Its institutions of the
administration of justice and the legal profession was formed during period of
the British colonial rule and continued within the Pakistan setting since the
partition. The new nation had many qualified persons with legal background who
had played quite a significant role in Pakistan. However, developing its own
institutions within the new nation has been a difficult task. The failure to
develop an efficient policing system has made severe problems in terms of the
protection of people’s rights. Corruption has become endemic within the entire
state structure and the policing system was made virtually dysfunctional due to
the corruption. Until very recently judges of lower courts were recruited from
the civil service and they were not part of the judicial cadre. It is within
this context that the lawyers of Bangladesh have to work. Litigation is a
protracted process which may take even as much as 20 years. The people’s trust
in the system of the administration of justice is very low. For that reason the
services that the lawyers can deliver to the people are also very low.
Corruption in Bangladesh has been highlighted by the Transparency International
Corruption Perception Index of 2005 [9], when it was placed virtually at the top
of the list as one of the most corrupt nations from 2001 to 2005. Endemic
corruption has penetrated into all areas of the criminal justice system and in
fact, the legal system in general. Human rights organisations have often
expressed the view that over 50 % of the persons in Bangladeshi jails are
innocent, manipulated by the police to admit to offences they have never
committed. Most of these prisoners come from very poor backgrounds. The actual
culprits escape by the payment of bribes [10].
By the middle of the last century Sri Lanka was considered
as the most promising of the south Asian nations from the point of view of
democracy and the rule of law; the country’s administration of justice, in the
modern sense, started by the end of the 18th century. There was training for
lawyers and judges over a long period of time, enactments of laws into almost
all areas of life and the establishment of courts in all parts of the island.
The development which took place in the latter part of the 20th century,
however, undermined the independence of the judiciary and the role of lawyers.
The country is now known for large scale disappearances in the south, north and
the east and extreme forms of violence. Politicisation of the state institutions
has virtually made way for a situation of impunity due to dysfunctional systems
of policing, prosecution and the judiciary. The judiciary has been severely
criticised as having succumbed to the executive and been unable to deal with the
abuse of power in all areas of life. Under these circumstances the public
perception of lawyers is that they have no room to achieve legal redress within
the system. On the other hand some sections of the higher judiciary itself have
begun to openly attack the legal profession. The laws of contempt of court are
being used extensively and the threat of the use of such laws has had a
tremendously intimidating effect on the legal profession. They have been severe
expressions of frustration and dissatisfaction on the part of the lawyers
[11].
Perhaps the contradictions involved in the legal profession are best
expressed in what may be called Asia’s most unfortunate nation,
Burma. At the time of preparing this article one of the most
significant political events of the recent decades is being staged in this
country. Literally, over ten of thousands of Buddhist monks have taken to the
streets in a protest that developed over the short space of a week. This protest
is receiving enormous support from the people of the country. However, the
military regime has acted aggressively against the protest and there are reports
of indiscriminate shooting into the crowds. It is obvious that there is a huge
crisis of power in Burma and it has been there for a long time. The legitimately
elected government of Aung San Suu Kyi was not allowed to take power and Aung
San Suu Kyi herself, has been under house arrest for over 12 of the last 18
years. There is no avenue for lawyers in Burma to challenge the usurpation of
power by the military by way of a constitutional law remedy or any other legal
remedy. The entire judiciary is subordinated to the military regime. All that
the lawyers can often do is to find some form of very small redress for their
clients who suffer grave abuses of human rights. There are many in jail for acts
like, writing a protest letter or being engaged in some small protest at the
village level against some village functionary or the police. What then is the
role of the lawyer in a context like this? Now with the challenge posed by the
monks and the people against the regime the lawyers have become even a bigger
target of military repression [12].
In contrast to Burma, Singapore is an affluent nation. Yet
the lawyers in Singapore who may be able to function as lawyers in a developed
country on matters relating to trade and commerce, do not have any such liberty
at all to deal with constitutional matters or matters of public law. Even in
criminal law their powers are limited. One party controls all the political
affairs and all opposition is crushed through draconian laws. The unscrupulous
use of bankruptcy laws may deprive persons from any form of political activism
and even send persons to jail who attempt to visit an international conference
at the cost of an invitation by the hosts on charges of violating bankruptcy
orders as happened to Dr. Chee Soon Juan in March, 2006 [13]. Here again
the lawyer’s capacity to deal with matters that would normally come within the
purview of a lawyer is in fact denied by the law and the way in which the system
operates.
India enjoys a reputation in the west of being a democracy;
in fact it is the world’s largest democracy and enjoys the reputation of having
a strong system of the administration of justice. The independence of the
Supreme Court of India has often been praised. However, despite of such a
favourable international reputation, Indian justice administration suffers from
extreme problems. The prolonged delays, as much as 20 years of so, has created
work overloads in courts prompting a former government even to attempt to rid
itself of even the most basic notions as presumption of innocence, and proof
beyond reasonable doubt, as a way of dealing with the delay. This attempt which
was made through the Malimath Committee recommendations has been shelved due to
enormous public protests. However, the system has not found a solution to the
problems it is beset with. The Indian system has also not been able to achieve
equality before law and huge portions of the population still remain outside the
system and are unable to benefit from it. Added to all this is the nature of
India’s policing system which still uses torture as the main method of
investigation. During recent years, extrajudicial killings, known as encounter
killings, meaning killing as a result of shootings between law enforcement
officers and others, have also increased. The view of human rights organisations
is that the term ‘encounter killing’ is a misnomer and in most instances it
denotes killings by security authorities after arrest. When the system is taken
as a whole it appears starkly clear that the possibilities of redress are
limited. It is within that framework that the lawyers of India have to work and
carry out their role [14].
How do the problems we have mentioned above effect actual cases and influence
the very substance of justice? This is important in understanding what role
lawyers can in fact play under those circumstances. I have chosen five stories
written on the basis of cases that the Asian Human Rights Commission has been
involved in for several years. The AHRC constantly contributes to the fighting
of cases both by way of publicity campaigns such as urgent appeals and actual
involvement in cases in courts. The AHRC is involved in this manner in several
countries. The cases I have chosen illustrate our general experience of the type
of issues that litigants face in the countries I have mentioned [15].
Dialectics of Justice – Five Sri Lankan
Cases:
1. The Case of Amitha Priyanthi
When you meet Amitha Priyanthi, it is difficult at first to tell if you are
in the presence of hope or bitterness. A woman of exceptional dignity and
determination, Amitha’s bearing—formal, measured, precise—betrays little of her
inner life. This is by design, one senses. Amitha conveys the presence of
powerful emotions precisely by withholding all emotion from view. Her assertions
and explanations of things—events of the past, plans for the future—always
reflect years of careful consideration. But this same feeling as she has pursued
the cause of justice in the name of her late brother, and what she feels as she
looks to the future, are not made available. One does not know, equally, whether
to feel hope or bitterness oneself as Amitha tells her story. Only at the end,
when Amitha brings events up to the present and explains the way forward, does
the recognition come: Hope and bitterness are not separable in Sri Lanka. The
pursuit of justice in Sri Lanka brings both, even in victory.
There are many deserters from the Sri Lankan army—a consequence of the long,
senseless war in the North and East between government troops and the Liberation
Tigers. And it is with an act of desertion that Amitha’s story begins.
Her younger brother, Lasantha, was a soldier. He seems not to have held a
strong view about the war, although he opposed it and did not wish to fight in
it. Stronger were his feelings about his wife and newborn baby. In the spring of
2000, while serving in the north, near Jaffna, Lasantha was refused leave to see
his family. Instead he was given a few days to travel to his village, then
ordered to return to his unit. Lasantha went home but never returned.
“He was granted a short holiday,” Amitha said when we discussed these
events. “He had no intent to go back.”
On June 12, 2000, the police arrested Lasantha in Payagala, the village south
of Colombo where he lived. Eight days later he died in a hospital, still under
remand, of injuries sustained while he was in police custody. The cause of death
was acute renal failure: Lasantha’s kidneys had been irreparably damaged when
the police beat him with a wooden pole.
Seven years later, Amitha was still fighting for justice in the case of her
brother. There had been victories and defeats. She had gone from police station
to police station, from court to court, from one session of the Sri Lankan
Medical Council to the next. And there would be more to come.
In August 2003, a case she had pursued in the Supreme Court on behalf of her
widowed sister-in-law ended successfully. It created a precedent regarding the
rights of the next of kin to seek redress through an application to the Supreme
Court based on the fundamental rights clause in the Sri Lankan constitution. The
court held that the police were responsible for torturing her brother and
granted compensation to the widow and child from their marriage.
Amitha also won a case in magistrate’s court when a doctor testified that her
brother’s death was homicide—death by assault. Criminal charges—culpable
homicide—were then filed against one police officer. But complications
accumulated in this case. The non-summary inquiry into the homicide case took
six years—until March of 2006. The case had gone to the high court, but by the
summer of 2007 the Attorney General had yet to file an indictment. In the course
of these delays, the officer charged absconded—disappeared, as Lasantha had done
when he went on unauthorized leave.
In a district court, Amitha followed another strategy. She filed a civil
claim against three police officers, the Inspector General of Police, the
Attorney General and the Commissioner of Prisons. She also filed a further civil
action against the Judicial Medical Officer (JMO), the Attorney General and the
Administrative Secretary to the Ministry of Justice, whom she claimed were
complicit in her brother’s murder. A civil case such as this involves prolonged
litigation; anything from 5 upto 20 years.
On July 26, 2007, Amitha had another breakthrough. This occurred when the Sri
Lanka Medical Council ruled on the case of the doctor charged with examining
Lasantha while he was in police custody. The council had been deliberating this
case since October of 2001—nearly six years. It finally found the examining
doctor guilty of eight offenses and suspended him from practice for three years.
Doctors of this kind are known as Judicial Medical Officers, and in this
capacity they have quite specific responsibilities. This doctor’s offenses as a
J.M.O. in Lasantha’s case are telling in themselves: They were mostly matters of
omission. He had not asked Lasantha for his consent before examining him. He did
not ask Lasantha the names of the police officers who assaulted him. He failed
to give Lasantha a comprehensive examination—neglecting even to take his blood
pressure. He failed to record any diagnosis nor to recommend hospital admission.
In all, the doctor appears to have spent fifteen to twenty minutes with
Lasantha. But we do not know, for that is by the doctor’s account, and he made
no record of his procedures.
One of the doctor’s offenses involved what he did, not what he failed to do.
He examined Lasantha in the presence of the police officers in the station where
he had been tortured.
The facts of Lasantha’s case and of Amitha’s long search for justice, are
matters of record now. And Amitha, as she pursues the cases still pending, will
add more to these facts and records. What do we see when we look closely at
them? What do the records tell us about the matter of justice in Sri Lanka?
There is, first, the question of time. And related to this is the question of
care and carelessness as they exist side by side in Sri Lanka.
Lasantha was dead within eight days of his arrest in the spring of 2000.
Whether or not a court would have found him guilty of an offense we will never
know, because he never got that far. Guilty or not, he was deprived of justice.
And we now know that the examining physician spent all of fifteen to twenty
minutes (and quite possibly less) examining the patient. As the medical council
concluded, a proper examination would very likely have saved Lasantha’s life.
These facts stand against the seven years it has (so far) taken Amitha to
bring justice to the case of her brother.
The medical council’s ruling in the summer of 2007 is the most recent to be
issued in Lasantha’s case. When we read it, we cannot but be struck at the
meticulous care taken in the council’s deliberations over a period of several
years, during which all efforts were made to provide the examining physician an
opportunity to defend his conduct.
All Sri Lankans are due the amount of time that is required, however much, in
the delivery of justice. All Sri Lankans deserve the attention to procedure the
medical council brought to the case of the J.M.O. who examined Lasantha. But
when this time and attention are placed next to the swiftness of Lasantha’s
torture and death and the carelessness with which the doctor handled his case, a
paradox emerges: When time and attention to procedure are given to some and
withheld from others, they stand as a perversity.
We must also recognize in the records the presence of what many civil society
activists concerned with the judicial system term “the network.” The network
consists of judges, lawyers, police, and doctors who work in concert—not for the
proper administration of justice, but for the benefit of one another. A judge
will collude with the attorney who is supposed to represent a defendant. Or he
will collude with the police. Or the lawyer for the defendant will collude with
the police. Or (as in this case) a doctor will collude with the police in his
official capacity as a J.M.O.
Note the doctor’s evident attitude in Lasantha’s case. The examination was
cursory by any reasonable measure. The physician examined Lasantha in the
presence of the police. He failed to recommend hospitalization because (as his
counsel testified) he assumed the police would continue to hold him. These
attitudes, these assumptions, this kind of conduct—all are prevalent in the Sri
Lankan system. It is how the network functions. The presence of the network is
the reason many of Amitha’s friends and acquaintances advised her not to embark
on her search for justice in the first place.
But here we come to a question that is everywhere evident in the record even
if it is nowhere stated. This concerns the power of the powerless. We must not
overstate the present position. Abuses—police abuses, medical abuses, and
judicial abuses—are thought by many to be increasing in Sri Lanka, not
declining. Amitha is in many respects something other than typical. Many cases
such as hers do not end in justice. But Amitha brought sufficient courage and
determination—a certain hardness, we can say—to her search for justice. And she
proved that the powerless can assume power over their lives and circumstances.
There is another way to put this: If Sri Lanka is to cure itself of its ills,
Amitha represents the future, while the guilty in the death of her brother
represent the past. Or still another way: In Amitha, a person of complex
emotions but someone who is also in control of them, we find a certain kind of
hope. It is the possibility of hope without bitterness.
2. The Case of Anthony Fernando.
The picture of Anthony Michael Fernando most commonly circulated shows a
young, smiling man looking slightly down into the camera. So perhaps, one
surmises, he is tall. He wears a sport shirt, open at the neck, and his hair is
neatly trimmed. In the background are what appear to be Gothic windows: He
is standing, perhaps, in front of a church facility, or a community center.
One searches this small snapshot in vain for some suggestion of the
extraordinary fate that befell Tony Fernando, as he is known, when he entered
the space of the Sri Lankan justice system. But there is none. So, in the end,
it is the ordinariness of this man that bears interpretation. In Tony Fernando
we find the tragic ordinariness of extraordinary injustice in Sri Lanka—its
reach into everyday lives.
Tony Fernando’s story extends back many years now, for justice delayed is a
considerable part of it. In 1997 he was employed as the Christian Emphasis
Secretary of the Young Men’s Christian Association in central Colombo. One day
he fell and suffered injuries—a regrettable but common enough experience. Little
that happened afterward was common, however—at least not by any reasonable
standard. Tony Fernando fell at the Y.M.C.A., one might say, and did not stop
falling until he landed in exile in Canada, where he now lives.
After his injury at the Y.M.C.A., Fernando filed a claim for workman’s
compensation. When the matter came before the Deputy Commissioner for Workmen’s
Compensation, an amount of offered which Fernando found unacceptable and his
claim for compensation for a work-related injury was thereafter dismissed.
Legal motions followed—Fernando filed four of them. The first two alleged
that the deputy commissioner’s ruling violated his constitutional rights.
Time passed. In November of 2002 the Supreme Court considered the two motions
jointly and dismissed them. Two months later Fernando filed a third motion
relating to a legal point: He alleged that that the consolidation of the first
two claims and their joint dismissal effectively denied him a fair trial. This
motion was dismissed almost immediately. Fernando’s fourth and most
fateful motion followed in February of 2003. In it Fernando objected that the
chief justice, Sarath Silva, and the two other judges who considered his third
motion had no right to do so: They were the same judges who had dismissed the
first two motions. This point would later receive the support of numerous legal
experts, including the U.N.’s Special Rapporteur on the independence of judges
and lawyers, Param Cumaraswamy.
But it is at this point that the substance of the case, one way or the other,
is lost—or changes fundamentally in nature. From this point forward the question
ceases to be Fernando’s compensation claim and becomes the nature of justice (or
injustice, more properly) in Sri Lanka. “I am not going into the merits of the
case,” Cumaraswamy would say later. “The question here is whether it is proper
for the chief justice, after having been made a party to a case, to sit on the
panel and adjudicate on the matter.”
We mentioned that the fourth motion was fateful, and indeed it was. With it,
a fall while on duty at the Y. M. C. A. became, perversely enough, an
international cause célèbre.
Fernando filed his final motion on February 5th. The following day the motion
was heard, and during the proceedings Chief Justice Silva, a man of wide and
controversial repute, considered that Fernando spoke too loudly in addressing
the court. Silva issued a summary judgment: Fernando was sentenced to a year’s
“rigorous imprisonment”—that is, hard labour—for contempt of court. He began
serving his sentence that day.
Tony Fernando faced abuse almost as soon as he entered prison. He developed
an asthma condition that went untreated. He was forced to sleep on the floor
with his legs chained, which worsened his medical condition. On being
transferred from a prison hospital back to his cell, he was repeatedly
assaulted, which resulted in spinal injuries. In less than a week he was unable
to get out of bed.
A month after his incarceration, Fernando filed a case alleging violation of
his fundamental rights according to the Sri Lankan constitution. He also
appealed Silva’s contempt ruling. The rights case, at writing, is still pending;
the appeal on the contempt charge was dismissed in July of 2003, four months
after it was filed.
Tony Fernando was released from prison eight months into his sentence, in
October 2003. While in prison custody, he filed three legal complaints: one with
the U. N. Human Rights Committee regarding the contempt charges and the torture
that followed; one (noted above) with the Supreme Court alleging torture while
he was imprisoned, and one a criminal case against two prison guards allegedly
responsible for his torture. At the time of writing the fundamental rights case
before the Supreme Court is still pending and the criminal charges against the
two prison guards has not been pursued by the state and the United Nations Human
Rights Committee has made its decision, holding that Sri Lanka as the state
party has violated Tony Fernando’s human rights by illegal detention, despite of
the court decision to imprison him and requesting the government to pay
compensation for the violations of his rights. The government has refused to pay
the compensation on the basis that since the imprisonment was a result of a
judgment of a domestic court it is not in a position to take any action on the
matter.
Events unfolded swiftly at this point. In December of 2003 he received
anonymous death threats by telephone, during which time he was told to withdraw
all three cases. A month later the U. N. Human Rights Committee appealed to the
Sri Lankan government for Fernando’s protection. (None was forthcoming.) A month
later there was an attempt on Fernando’s life, when an unidentified man attacked
him on a Colombo street and covered his mouth with a handkerchief containing a
substance that proved nearly lethal.
On 30th August 2004, Tony Fernando appealed for asylum in Hong Kong. He left
Sri Lanka on the 16th June 2004, and seven months later settled in Surrey,
Canada where he now resides. His wife and children joined him in Surrey on
the 16th December 2004. He still awaits two judgments.
There is a striking pettiness in the Tony Fernando case. Why did the Supreme
Court act to turn such a minor matter into a case with international
implications in the first place? A pettiness and a lack of all reasonable
proportion. Sri Lanka, unlike India and numerous other jurisdictions, has no law
covering contempt of court procedures. Judges can rule as they see fit and
sentence defendants accordingly. It was in this circumstance that Tony Fernando
received a year’s hard labour (and then all the mistreatment that went with it)
for the alleged offense of raising his voice in court. Again, the question is,
“Why?”
Some fundamental features of Sri Lanka’s critically dysfunctional judicial
system are evident in the Fernando case. To understand them is to answer the
above-noted questions. To understand them is also to recognize the fundamental
problem of hierarchical consciousness in Sri Lanka and how it is manifest
through a judicial system that is nominally based on modern procedure.
The most prominent of these characteristics is an obsession with form within
the system. One finds among attorneys and judges alike in Sri Lanka an almost
pathological preoccupation with rules and procedure. Form, in this sense, is
ordinarily essential for the delivery and administration of equal justice. In
the Sri Lankan case, form as we mean it here performs a different function. Its
purpose is to mask what amounts to a near anarchy of injustice in Sri Lankan
courts. So long as form is observed, practically anything goes.
Tony Fernando’s true offense was to insist that law and procedure be applied
as they were originally intended. This amounted to an attack on another of the
core features of the Sri Lankan system: its impulse to preserve the prerogatives
of arbitrary power. So we arrive at the essential contradiction exposed in the
Fernando case—that is, behind the curtain of rules that the judiciary so
carefully maintains, there are no rules.
The question of arbitrary power is related to another involving distance.
Distance between ruler and ruled is, in essence, a feature of pre-modern
political systems. It is by way of distance that arbitrary power is maintained.
And it was another of Tony Fernando’s offenses that he denied the judiciary’s
right to a distance it considered customary.
What is finally brought to light in the Fernando case is the problem of
impunity and the judiciary’s underlying desire to preserve it. The true tragedy
of Tony Fernando’s journey through the courts—even before it has ended—is that
there is nothing out of the ordinary in it.
3. The Case of Lalith Rajapakse.
It is common, when making one’s way among the many victims of official abuse
and human rights violations in Sri Lanka, to find people who have been waiting
for three, four, or five years for their cases to be decided. Injustice may
arrive swiftly—without notice, within a few seconds, out of nowhere. Then the
years go by as the victim seeks redress. It becomes, in the end, another form of
victimization, another form of injustice, not unrelated to the matter of
official impunity. One is made a victim of abuse, and then one is made a victim
again in the course of seeking to rectify the wrong.
Lalith Rajapakse was nineteen on the night of April 18, 2002. He is, at this
writing, twenty-four, physically impaired and psychologically traumatized and
still awaiting justice in the events that ensued.
On the night in question, several police officers arrived at the door of a
friend’s house, wherein Lalith was sleeping. For no reason evident to him at the
time he was awakened, arrested, and taken to the police station in Kandana, a
town about 20 kilometers north of Colombo. The torture that was to become
central to his case began immediately: Lalith was beaten even in the jeep into
which he was bundled outside his friend’s house.
The U.N. Human Rights Committee later detailed Lalith’s treatment at the
police station: “He was forced to lie on a bench and beaten with a pole; held
under water for prolonged periods; beaten on the soles of his feet with blunt
instruments; and books were placed on his head which were then hit with blunt
instruments.”
These kinds of torture are familiar to those who study police practices in
Sri Lanka. The last is intended to inflict internal injuries without leaving
external marks. In Lalith’s case, his grandfather eventually came to the police
station and found him, slumped and lifeless, in a cell. He lay unconscious in a
hospital for fifteen days afterward and was unable to speak coherently for
nearly a month. He remained in treatment for another month; thereafter, the
psychological stress prevented him from work. For two years Lalith lived in
hiding, and he and his family survived on charity.
Three charges were filed against Lalith, and the torture was intended to
extract a confession validating them. But none held up. There were two
allegations of theft, which collapsed nearly a year and a half after they were
filed, when it turned out the supposed victims of robbery had never claimed
Lalith had stolen anything from them. The third charge was for allegedly
obstructing the police in the discharge of their duties. It was not quite three
years before a magistrate court acquitted Lalith of this charge.
Lalith took action on his own part. In May of 2002, just out of the hospital,
he filed a case in the Sri Lankan Supreme Court charging that his fundamental
rights, as guaranteed under the constitution, had been violated. His grandfather
was a party to the case. A few months later the Attorney General, in apparent
response to pressure from the U. N. Human Rights Committee, ordered an inquiry
into the events that had led Lalith and his family into the courts. This led to
a case in the High Court.
But the delays and irregularities have been many. Chief among them has been
the pressure applied to force Lalith to withdraw from the legal process.
Threats against Lalith and his family have been more or less constant. And
there are other details—bizarre, petty details that reflect certain routines the
police often follow. A month after Lalith filed his fundamental rights case, a
local fish trader (and a longtime acquaintance of Lalith’s grandfather) was
asked by the Kandana police to poison the fish the grandfather next bought. The
fishmonger was also asked to let the police know where the grandfather liked to
drink, so that his liquor, too, might be poisoned.
A few months later came threats to Lalith’s life. These arrived by way of
anonymous figures claiming to speak for the Kandana police—a claim the police
denied. All the while, the police officers alleged to have tortured Lalith were
permitted to continue serving in their customary posts. It was not until
December of 2004 that Sub Inspector S.I. Peiris in Kandana and two other
officers were barred from service and transferred. Sub Inspector Peiris was also
indicted under the Torture Act of Sri Lanka.
Lalith’s efforts to pursue justice have been more successful than those of
many other Sri Lankans. And it is because of this partial success that his case
affords us a particular window into the judicial system, its workings, and the
limits of international authority.
In May of 2005, the U. N. Human Rights Committee accepted Lalith’s appeal,
overruling the objections of the Sri Lankan government as to the admissibility
of the case on the grounds that his human rights were violated. A little more
than a year later, the committee ruled in Laith’s favour: “The delay in the
disposal of the Supreme Court case and the criminal case amounted to an
unreasonably prolonged delay,” the committee noted in its decision.
This represented a significant victory for Lalith, for his family, and for
those human- and legal-rights organizations that have supported Lalith since he
first filed his cases. But at this writing, in September of 2007, neither the
Supreme Court case nor the criminal case against Sub Inspector Peiris has been
settled.
Justice delayed, as the age-old principle holds, is justice denied. Yet for
many Sri Lankans, justice delayed is all there is in the best of outcomes: It is
a rare case that is accepted at the U. N. or by any other international
organization devoted to upholding the rule of law. Most of the time, the
universe of the law ends at the national borders.
Lalith’s cases thus underscore a very uncomfortable truth in the struggle for
justice in Sri Lanka: Even when cases of abuse and human-rights violations are
taken up at the international level, the impunity with which the Sri Lankan
authorities have long acted can still prevail.
In September of 2006, with Lalith’s cases still pending (along with many
others), Chief Justice Sarath Silva sought to elevate this impunity to the level
of legal principle. Once again, the thought appeared to be that anything was
permissible so long as it had the appearance of proper procedure.
Chief Justice Silva’s ruling came in the case of a man charged with
conspiracy to overthrow the government—a case connected with the war between the
government and the Liberation Tigers. The defendant, having been sentenced to
ten years of “R. I.,” or rigorous imprisonment—that is, hard labour—successfully
appealed to the U. N.’s Human Rights Committee. The committee ruled in the
defendant’s favour—a ruling Sri Lanka is legally committed to respecting. Silva,
in an especially tortured instance of contorted legal reasoning, responded by
invoking “the sovereignty of the People” to assert that Sri Lanka was, in fact,
not bound to respect the U.N.’s rulings, despite being a signatory to the
relevant covenants!
Among human-rights and legal-rights advocates and activists, the 2006
decision is considered a landmark in the all but complete corrosion of Sri
Lankan justice.
4. The Case of Palitha Tissa Kumara.
Excess is a common feature of the Sri Lankan justice system. In one form or
another one finds it in almost all the research one may conduct into the
workings of the police, the lawyers, the judges, and the doctors. There is
violence, there is abuse of a defendant’s rights, there are threats and
intimidation, there is false testimony, there are excessive sentences, there are
unwarranted delays. Every so often we find a case that reminds us of the
pathology underlying these forms of excess. At its root, the problem of
injustice in Sri Lanka is a psychological problem. If we look at this carefully,
there are suggestions that the contempt authority displays for ordinary
citizens, are a form of self-contempt.
The case of Palitha Thissa Kumara is such a case. There is no other way to
explain some of its grosser excesses but by way of a psychological analysis.
Some of the facts in Palitha’s case will by now be familiar in our brief
readings of other cases. The case begins on February 3rd, 2004.
Palitha was a craftsman from Matugama in the district of Kalutara. He was
skilled in the arts of painting and stone carving. On the morning of February
3rd, six police officers arrived at his home and asked him to come to the
station in Welipenna, a nearby town to paint the police emblem on the
stationhouse in preparation for Sri Lanka’s celebration of its day of
independence. Palitha agreed. Any aspect of Palitha’s encounter with the local
police end at this point in his story.
Before the officers and Palitha reached the jeep in which they were to drive
to the station, one officer turned and, out of nowhere, pistol-whipped Palitha
to the point of causing an open wound on his chin. The police thereupon threw
Palitha to the ground and assaulted him further before piling him into their
vehicle.
On the way to the station the police stopped to arrest another man,
known as Galathaga Don Shantha Kumar. Don Shanta would soon become a prominent
figure in Palitha’s case. He, too, was tortured; he, too, was accused of
plotting robberies.
At the police station, an all too predictable round of torture began.
According to Palitha’s account, the police officer who had pistol-whipped
Palitha beat him with a cricket pole on his neck, arms, head, spine, and knees.
He then began demanding—again, out of nowhere—that Palitha surrender the bombs
and weapons in his possession—bombs and weapons he had planned to use in the
armed robberies he had been plotting. Don Shantha was there. The police officer
made it known that the same would be coming to him.
The torture continued for approximately two hours, according to Palitha’s
later testimony, during which time Palitha repeatedly denied any knowledge
of bombs, weapons, or robbery plots. The abuse stopped only when about
eight other officers intervened, one of them taking the wicket from the violent
officer’s hands.
The assaulting officer then brought another detainee into the room. His name
was Thummaya Hakuru Sarath, and he suffered from tuberculosis. The officer then
issued what must stand as one of the most grotesque orders in the long,
often-grotesque history of police abuse in Sri Lanka. Sarath was to expectorate
into Palitha’s mouth so as to infect him. More than a year later, when the
matter was in dispute, Sarath gave a statement confirming that he had been
forced to act in a manner deliberately intended to contaminate Lalith. It also
emerged the Sarath, too, had been beaten—a victim himself.
Unable to stand, in and out of consciousness, Palitha remained in a jail cell
for several days, during which more torture ensued. He was finally taken to
hospital—or, rather, hospitals, for there were two, both of which refused to
admit him (one refusing twice) despite injuries that were by this time evident.
Back at the jail cell, the assaulting officer produced a grenade. Palitha was
forced to leave his thumbprint in wax, whereupon the print was transferred to
the grenade. The officer had already forced Palitha to sign a confession of
guilt without reading it to him.
It is now the 6th of February, three days after Palitha was taken from his
home. He is taken back to one of the hospitals that had refused him admission.
There “a man wearing a pair of shorts,” according to court documents, signed
some papers. Palitha was then returned to the police station and later that day
made a brief pass through a magistrate court before being admitted at a third
hospital—a prison hospital in the town of Kalutara.
Palitha remained in prison until his release on bail on July 28, 2004, after
four months and twenty five days in jail. But during that time, he had filed two
cases. One was a fundamental rights case alleging that the police had violated
his rights as guaranteed in the constitution. The other, filed by the Attorney
General in High Court, charged Kaluwanhandi Garwin Premalal Silva, a
sub-Inspector and Palitha’s’s principal assailant while in police custody, with
causing torture by beating him with a pole and forcing a T.B. Patient to spit
into his mouth.
Predictably enough, the threats against Palitha and his family began almost
immediately. In mid-June he was offered five hundred thousand rupees, about five
thousand American dollars, to withdraw his cases. In two separate incidents, he
and his family received messages via third parties that his wife and child would
be killed if he did not cooperate by dropping his complaints.
The court proceedings in Palitha’s cases are excessive in their own right.
The Supreme Court heard Palitha’s fundamental rights case during several
sessions in the course of 2005. The man in the shorts at the hospital, who had
routinely signed police papers, turned out to be an assistant judicial medical
officer, or A.J.M.O. His report on Palitha listed thirty-two separate injuries
on all parts of the body, from scalp to feet. Among them were lacerations,
multiple contusions, tinnitus in one ear, and a fractured anklebone. All but the
fractures were judged “non-grievous.” Yes, the doctor noted in his report, these
injuries could have been sustained as the victim claimed they were.
The police presented an entirely different story. Palitha had been armed with
a grenade when they arrived at his house, and it had been necessary to subdue
him. The injuries sustained reflected the use of the minimum force required
under the circumstances. There had been no torture; there had been no incident
involving Sarath, the man with TB.
Palitha won a modest victory in his fundamental rights case. On February
17th, 2006, the Supreme Court ruled that, given the danger Palitha presented
when he was arrested—meaning the grenade and the threat he would set it off—the
violence at the time of his arrest was justified. The appearance in magistrate’s
court, although required by law within twenty-four hours of arrest, was lawful.
However, the court accepted Palitha’s account of torture at the police station
and ruled that his constitutional rights had been violated. The
judgment—excessive in its paucity, one might say—called for restitution in the
amount of five thousand rupees from the police officer who assaulted
Palitha—about fifty dollars—and twenty-five thousand rupees from the government
as damages and compensation for costs.
Those supporting Palitha’s case, despite its disproportionate award and the
partial findings in the police officer’s favor, counted the Supreme Court ruling
an advance. But an unusual thing occurred some months later. On October of 2006
the High Court found in the police officer’s favour. Sub-Inspector Silva was
acquitted of all charges of torture—the judge ruling, in effect, that violence
to the extent evident in Palitha’s medical report was not excessive. The High
Court judgment is, at this writing, on appeal.
We can but speculate, at this writing, as to Sub-Inspector Silva’s
motivations in his handling of Palitha’s case. It may have been that a crime had
been committed and he was desperate to find a perpetrator to demonstrate his
efficiency. Such often occurs. But it is not clear in this case. What is clearer
are aspects of the case that require no further evidence.
There is a pathology of disturbance in Palitha’s case. The excess of
violence—against three detainees, not only Palitha—is to be seen in numerous
other instances. It is, indeed, not the worst case on record in this respect.
The attempt to pass on a potentially lethal disease is another question. It
indicates a depth of contempt that requires professional, clinical
consideration.
The problem of injustice in Sri Lanka is, of course, a legal matter. There
are also clear questions of a political and sociological nature. A case such as
Palitha Tissa Kumara’s, however, urges the prominent inclusion a psychological
perspective. The problems associated with a dysfunctional police apparatus and a
similarly impaired judicial system cannot be solved without reference to
questions such as contempt and self-contempt, the self and the “other” in Sri
Lanka, and the consciousness of hierarchy that infuses every human relationship
with a dimension of “above” and “below.” It is such complexities of
consciousness that lead police officers to act as Sub-Inspector Silva did—and
judges to defend him as they did in two separate courts.
>>continue to part 2
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