The side event took place during the UN Human Rights Council's
12th session, where the critical situation in Sri Lanka was
With the support of RCT Kishali Pinto-Jayawardena, a Sri Lankan
attorney-at-law who writes on human rights in the Colombo based The
Sunday Times, has collected, analyzed and published the
comprehensive documentation in a 240 pages long report, The Rule of Law
in Decline in Sri Lanka - Study on the Prevalence, Determinants and
Causes of Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment in Sri Lanka.
The main conclusions of the report are:
- Widespread torture by law enforcement personnel takes place as
part of an established routine, and there are several cases of
intimidation of victims and witnesses.
- Basic legal guarantees intended to protect due process and
ensure a speedy trial are increasingly under pressure in national
legislation and have been considerably weakened by the prevailing
Emergency Regulations. Very few of these legal safeguards are
adhered to in practice by law enforcement officers, including the
right to information about the reasons for the arrest, the right to
legal representation, and the 24-hour time limit for judicial
hearing after arrest. Furthermore, there are extreme time delays in
forwarding indictments and during trial.
- Although torture has been criminalized in the Convention
against Torture Act, the Act does not satisfy Sri Lanka's
obligations under the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. The deterrent
effect of the criminalization of torture has been minimal. There
have only been three convictions since 1994 and more than 17
acquittals. The majority of prosecutions are still pending in the
- There is no functioning independent system to deal with
complaints of torture and other forms of cruel, inhuman or
degrading treatment or punishment committed by law enforcement
officials, resulting in impunity and the lack of accountability.
The lack of disciplinary action against law enforcement officials
is one of the main attributing factors to torture.
- A fundamental lack of separation of powers, and persistent
political interference from the Executive with otherwise
independent institutions has led to politically motivated judicial
decisions and a lack of accountability for human rights violations,
- There is a fundamental lack of resources throughout the public
sector, including severe lack of infrastructure, personnel and
proper investigative equipment.
- Sub-standard conditions, which prevail in places of detention,
including severe overcrowding, lack of sanitation, food and
drinking water, as well as medical treatment can amount to cruel,
inhuman or degrading treatment, or even torture.
Several of Kishali Pinto-Jayawardenas findings are being supported
by a report from IBAHRI, Justice in retreat: A report on the independence
of the legal profession and the rule of law in Sri Lanka -
published in May 2009 after a fact-finding mission in the spring of
2009 by a high-level IBAHRI delegation. The delegation finds that
there is an increase in attacks against lawyers filing fundamental
rights applications, representing terrorist suspects and taking
anti-corruption cases, which has created an escalating climate of
fear amongst the legal profession. The threats and attacks are not
considered to be isolated events but - as Kishali Pinto-Jayawardena
also points out - form 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.
As is the case of Kishali Pinto-Jayawardena's study, the IBAHRI
report identifies several gaps in the legal and institutional
infrastructure of Sri Lanka, which has had a detrimental impact in
the functioning of the justice system in Sri Lanka. IBAHRI states
that the lack of independent oversight makes the judiciary
vulnerable to political influence and jeopardizes its independence.
Another matter of concern for the IBAHRI is the prevailing
Emergency Regulations and the Prevention of Terrorism Act, which
have had a negative impact on the right to freedom of expression,
both for lawyers and for journalists, and also impinge on several
fundamental legal guarantees, in particular the principle of
legality, pre-trial rights during arrest and detention and due
process guarantees in criminal cases.
Both Kishali Pinto-Jayawardena and IBAHRI present a series of
recommendations. Among the major recommendations are, that:
- The government of Sri Lanka complies with its international
obligations to protect and promote the independence of the legal
profession and ensures that lawyers are able to perform all
professional functions without intimidation, hindrance, harassment
or improper interference.
- Police investigations into the threats and attacks upon lawyers
and journalists are expedited and are independent, thorough and
- Preventive steps are taken to ensure the security of lawyers
- Sri Lanka returns to a system where appointment, transfer,
dismissal or retirement of judges at all levels are determined by a
transparent and accountable system.
- A judicial environment is created where all extraneous
influences on judicial decision-making are strongly discouraged and
- Criminal legislation touching on freedom of expression,
including the Prevention of Terrorism Act and the Emergency
Regulations, should be carefully reviewed to ensure that it is in
conformity with Sri Lanka's international obligations.
- The Government repeals any aspects of the Emergency Regulations
and the Prevention of Terrorism Act, which are not strictly
necessary and proportionate to the apparently decreasing security
threat currently being faced, with particular regard to basic due
The findings in the reports by Kishali Pinto-Jayawardena and IBAHRI
have been further actualized in the light of the ongoing
negotiations between the EU and Sri Lanka on the GSP+ trade scheme.
The GSP+ is a unilateral, preferential trade scheme from the EU to
Sri Lanka allowing business in Sri Lanka to export 7,200 items to
EU, duty free. The future of the GSP+ depends on how well the Sri
Lankan government is seen to implement 27 international conventions
on human rights, labour rights and environmental standards.
An interim report on Sri Lanka's compliance with international
treaties, requested by the European Commission and prepared by a
panel of independent experts comprising well known international
jurists, stated that the three main international treaties, namely
the International Covenant on Civil and Political Rights, the
Convention Against Torture and the Convention on the Rights of the
Child, was not being implemented in Sri Lanka. The report quotes
from the IBAHRI report as well as from Kishali Pinto-Jayawardena's
writings to illustrate current concerns with the failure of the
country's legal and justice institutions. The findings were debated
in the European Parliament's sub-committee on human rights Thursday
1 October. The report concludes that Sri Lanka is not moving in the
right direction at all.
Written by Simon Ankjaergaard