Govt prepares to address issues in Mendez’ report | Sunday Observer

Govt prepares to address issues in Mendez’ report

The report by the UN special rapporteur on torture, Juan Mendez, on Sri Lanka, was made public last Wednesday.

The report was the outcome of the Special Rapporteur’s visit to Sri Lanka from April 29 to May 7, last year.

During his tour, Mendez visited detention facilities and military camps in the Southern Province (Boossa Prison, Boossa TID detention facility, Galle Fort military camp), Western Province (Kalutara South Senior Superintendent’s Office, Panadura Police Station), North Western Province (Puttalam and Kalpitiya Police Stations), Northern Province (Joint Operational Security Force Headquarters in Vavuniya (“Joseph camp”), Vavuniya Remand Prison, Vavuniya Police Station, Vavuniya TID office, Poonthotam Rehabilitation Centre in Vavuniya and Eastern Province (Trincomalee Naval Base).

In Colombo, he visited the Criminal Investigation Department (CID) and Terrorism Investigation Division facilities (commonly known as the 4th and 6th floor), the Welikada Prison complex and the Borella Police Station.

The Special Rapporteur also met with representatives of the, Foreign Affairs Ministry, Defence Ministry, Law and Order Ministry, the Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs Ministry; Women and Child Affairs Ministry, Health Ministry and the Attorney General’s Department, before the conclusion of his visit.

Report considered by EU

Discussions were also held with representatives from the National Police Commission, National Human Rights Commission, the United Nations, the diplomatic community; international organizations; and the civil society. Mendez also met the Governor of Eastern Province, and torture survivors and their families.

The report, which sheds light on a wide range of matters related to law enforcement and judicial mechanisms in Sri Lanka, is now being considered by two international bodies that are of critical importance to the government.

One is the European Parliament, which is currently debating whether to ratify the recommendation to reinstate the GSP+ trade incentives for Sri Lanka. The other body is the United Nations Human Rights Council which is pushing the Sri Lankan government to set up a credible accountability mechanism to probe into alleged war crimes during the final phase of the war.

The Special Rapporteur’s report will be considered a measure of progress achieved by the national unity government over the last two years, in terms of restoring democracy in the country.

The report has underscored both, positive and negative developments concerning the human rights situation in Sri Lanka.

The report says, the new government has achieved significant progress when it comes to issues related to torture.

It hails the Law and Order Ministry’s assurance to draft new security laws replacing the Prevention of Terrorism Act and the Public Security Ordinance Act, the President’s directives to respect the Fundamental Rights of all suspects taken into custody under the PTA and the strengthening of the National Human Rights Commission as positive developments.

It says, “the Special Rapporteur expresses his appreciation to the Government for its willingness to undergo an independent and objective scrutiny of its human rights situation, particularly, in relation to a number of critical issues pertaining to its counter-terrorism legislation and criminal justice system.

He wishes to reiterate his appreciation to the Government for its full cooperation before and during the visit, in particular the efforts by the Ministry of Foreign Affairs to facilitate the program. He would also like to thank the

United Nations Resident Coordinator and the United Nations in Sri Lanka for supporting the visit, and all those who shared their expertise, opinions and experiences, despite concerns either for their own safety or for that of their families.”

Negative aspects

On the negative side, the report highlights Sri Lanka’s law enforcement system’s inability to investigate cases against the security forces and the Attorney General’s department’s unwillingness to prosecute due to “lack of independence”.

The report says, the judges in Sri Lanka almost exclusively rely on evidence gathered by the police and in most cases convictions are still based on a confession alone, as the main evidence.

“Impunity is directly attributable to the entire criminal justice system, and particularly the judiciary,” the report says, pointing out areas that Sri Lanka needs to address.

It also adds; “During his visit, the Special Rapporteur received credible reports that suspects, particularly detainees under the Prevention of Terrorism Act, are often first detained for interrogation without being registered during the initial hours, days or sometimes weeks of investigation and not brought before a judge. This practice facilitates the use of torture and other ill-treatment and can in itself constitute such treatment.

While severe physical torture seems to be inflicted on detainees mainly during

interrogations for more serious crimes, lesser forms of physical force are also used for ordinary crimes in all parts of the country. The nature of the acts of torture consists mainly of transitory physical injuries caused by blunt force (punches, slaps and, occasionally, blows with objects such as batons or cricket bats to the head, shoulders, back and legs), which heal without medical treatment and leave no physical scars. Insults and threats were also reported.

The Special Rapporteur received credible testimonies that torture and ill-treatment are inflicted on almost all suspects held under the Prevention of Terrorism Act during detention by the Criminal Investigations Department and the Terrorism Investigation Division, as well as, sometimes by the armed forces. The Special Rapporteur also observed that officers of the Department and the Division and members of the armed forces acting as arresting officers were often in plain clothes and did not identify themselves. Furthermore,

Division offices are sometimes located on military bases and several former detainees under the Act reported, even in recent cases, being taken to, or next to, a military facility for interrogation. Most of those detainees also confirmed that they had signed a confession under duress. This leads the Special Rapporteur to conclude that the use of torture and ill- treatment to obtain a confession from detainees under the Prevention of Terrorism Act is a routine practice.”

The Sri Lankan government has to consider the observations of this report, if it intends to make progress with regard to GSP+ and the UNHRC recommendations.

The government has adopted a comprehensive action plan with regard to the GSP+ facility, currently being debated before the EU Parliament. The implementation of the National Human Rights Action Plan and many other legal reforms are in the pipeline, in line with the recommendations made by the European Commission.

On the UNHRC front, the government’s willingness to address issues highlighted by the Special Rapporteur’s report will make a decisive impact on Sri Lanka’s ‘bargaining power’ in relation to the setting up of a hybrid court.

Although the government has come under pressure from various international parties to set up a hybrid court with international judges to prosecute alleged war crimes, the leaders of the government, on many occasions, have stated they will not proceed with a hybrid court.

The government’s position, however, has been a credible domestic process with the technical assistance of international parties.

If the government wants its domestic process to be accepted by the international community, it has to ensure that the local law enforcement bodies and judicial structures act in a manner that is acceptable to international stakeholders.

That is why the government should now launch into action, and make diligent steps to address issues relating to torture and human rights violations involving law enforcement bodies.

It will restore the international bodies’ faith in the domestic law enforcement system of Sri Lanka, helping the government’s position on a “credible domestic accountability mechanism”.

Bond issue

In another important development, the Parliamentary debate on the Treasury bonds controversy ended with Parliament agreeing to send the COPE report on the matter to the Attorney General’s Department.

Even before Parliament reached this agreement, Prime Minister Ranil Wickemesinghe took measures to send the report to the Attorney General’s Department for further action and the move, in a way, was affirmed by the country’s legislature.

A day before Parliament debated the COPE report on the bond issue, President Maithripala Sirisena announced the appointment of a Presidential Commission of Inquiry to investigate into the alleged bond scam.

A Presidential Commission of Inquiry to investigate into the bond issue is a recommendation by the Sri Lanka Freedom Party (SLFP), the party headed by the President.

A committee appointed by the SLFP studied the COPE report and recommended to the President that a Presidential Commission should be appointed to investigate into the matter.

The committee also said the committee should be headed by a sitting Supreme Court judge, or a retired one.

Ministers, Nimal Siripala de Silva, Susil Premajayantha, John Seneviratne, Anura Priyadarshana Yapa, Sarath Amunugama, Lakshman Yapa Abeywardana and Lasantha Alagiyawanna served as members of the committee.

On Friday, the President appointed three members to the Commission. Two Supreme Court judges, namely, K.T. Chithrasiri and Prasanna Sujeewa Jayawardena, were appointed to the committee alongside Velupillai Kandasamy, a retired Deputy Auditor General.

The members of the commission had vast experience in the legal and financial sector.

Chitrasiri

Chitrasiri was appointed a Supreme Court judge in 2015, after a six-year stint as a Court of Appeal judge. He served as Justice of Appeal in the Court of Appeal in Fiji from 2009 to 2011.’

A past pupil of Dharmasoka Vidyalaya, Ambalangoda, and Royal College, Colombo, Chitrasiri completed his Bachelor of Law at the University of Sri Lanka from 1971 to 1975 and also graduated from the Sri Lanka Law College in 1976 followed by Postgraduate Studies at Queen Mary College, University of London from 2001 to 2002.

He began his career in the legal profession as an attorney-at-law in March 1977 and practised both in civil and criminal cases.

He was a Magistrate in 1980 before being appointed as Director Human Rights Commission in Sri Lanka from 1991 to 1993. He also served as the Chief Magistrate of Colombo and District Judge Colombo.

Jayawardena

Justice Prasanna Sujeewa Jayawardena, the other Judge in the commission, is the first Supreme Court Judge who came from a banking background.

Jayawardena graduated from the Faculty of Law of the University of Colombo in 1978 with an LL.B (Honours) Degree and worked briefly as a Research Officer in the Legal Research Division of Marga Institute, which was then headed by Dr.Neelan Tiruchelvam.

In 1979, Jayawardena joined the HSBC where he spent a decade in various senior management positions in the fields of banking, finance, commerce and management, both in Sri Lanka and abroad.

Jayawardena passed his Attorney-at-Law Final Examination with a Class and apprenticed and worked as Junior Counsel in the Chambers of B.J. Fernando esq, President’s Counsel.

After Fernando retired from active practice in 1991, Jayawardena commenced practising as Counsel with his own Chambers and was appointed a President’s Counsel in 2012. He developed an extensive practice in the area of Civil Law specialising in the fields of Commercial Law, Banking Law, Company Law, Intellectual Property Law and Industrial Law.

He appeared primarily in the Commercial High Court and District Court and also in the Court of Appeal and Supreme Court. He was one of the most sought after lawyers in the commercial field with a wide practice.

The credentials of the three members appointed by the President showed that the government did not want to brush the bond controversy under the carpet.

The mandate of the commission will be to investigate the bond dealings and recommend necessary actions within 3 months. The relevant gazette notification is yet to be published.

The exact scope of operations of the commission will only be known when the gazette notification is published.

But, it is also important to understand that the inquiry into the bond issue will be a meticulous and highly complicated process.

Even the World Bank (WB) said, they are not aware of international best practices to accurately calculate the potential loss in the case of past bond auction.

World Bank Country Director Idah Pswarayi – Riddihough in a letter to the Secretary to the Prime Minister Saman Ekanayake, had said that quantifying the loss accurately would require knowledge of the actual cost of the bond placement under non competitive allocation (a necessary counterfactual).

“In our view that counterfactual cannot be accurately calculated on an expost basis as it depends on the market conditions on the auction date,” she said in her letter to Ekanayake.

“The World Bank hopes to effectively and immediately contribute to the design of auction rules and practices for issuing government debt in the upcoming joint mission with the IMF, the letter said.

“The targeted mission will be further complemented with a range of technical assistance activities to support development of the government bond market and the capital market at large, including the formulation of Medium Term Debt Management Strategy,” the letter added. 

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