Minority Tamils are not the only community to have suffered as a result of the historic deterioration of civil liberties at the hands of successive Sri Lankan governments, says human rights lawyer, columnist and writer Kishali Pinto-Jayawardena. She argues in an interview with Shyam Bhatia of asianaffairs that all communities, including the Tamils, will only feel safe when the country's democratic institutions are restored to proper working order.

AA: Could you tell us a bit about the report you recently authored charting the decline in the rule of law in Sri Lanka? It sounds like a very heated topic.

KPJ: As the study itself specifically states, this was an attempt to look at the gradual decline in observance of the rule of law standards in Sri Lanka during the past several decades so as not to limit itself to a particular historical period or to a particular government. This rationale was rooted in logic; when one does this, it is easily seen that Sri Lanka's problems are not traceable to a particular political party. Instead, the disregard for the rule of law is far more deeply engrained in the way that the systems themselves have developed through the years. Consequently, a more reflective approach is needed when examining as to how these problems may be tackled.

The analysis proceeded very systematically by looking first, in detail, at the applicable constitutional, criminal justice and statute related protections available against the right to be free from torture and cruel, inhuman or degrading treatment or punishment and seeing as to how deficient they were against international standards. Thereafter, the actual practical reality was examined with reference to decisions of Sri Lanka's courts as well as documented cases by activists to demonstrate as to how even the little protections that are available has been gradually eroded through the years.

One point should be made at the outset. This denial of justice that the study examines is not exclusive to the minority community (in the context of the ethnic conflict) in Sri Lanka. Rather, it is a question of tremendous concern to the majority as well and more specifically to the thousands of family members of persons of the majority community who simply 'disappeared' at the hands of state agents in the eighties and early nineties. Then, as more recently, the Sri Lanka State has been brutal in its response. My argument has been all along that the failure of the justice system and the breakdown of the ordinary law enforcement process have impacted on all communities, resulting in the deaths, enforced disappearances and physical and mental torture of thousands during the past three decades. Importantly, this phenomenon has been manifested not only during active conflict but also in times of relatively normal functioning. 

In the past, much effort has been expended on problems of constitutional theory and the niceties of one democratic system as against another (viz a parliamentary system as against a presidential system, a proportional representation electoral system as against a first-past-the-post electoral system or a unitary state as against a federal state). Such efforts are premised on the assumption that Sri Lanka's democratic institutions are in proper working order and that what is required is merely to decide on suitable models of governance.

However, I beg to disagree with this premise. As this study shows, there is a failure of the democratic process in a most profound sense and the centrality of the breakdown of the justice system is vital in this context. This underscores the point, albeit controversial, that the recently ended conflict in the North/East was the effect rather than the cause of a destructively cyclic perpetuation of coercive violence against all citizens by the Sri Lankan State. The brutality of the Sri Lankan State practiced against the majority community with such pervasive force at particular periods, in fact, formed a useful base for a pattern of abuses where ethnicity was specifically used as a ground to perpetuate violence when the North/East conflict intensified. 

Acknowledging this fact is an important start to address the country's progressive deterioration in observing rule of law norms in its governance systems. If the constitution cannot be made to work well in regard to questions of ordinary governance, how can we expect it to work well in addressing as problematic a question as the commonly termed 'ethnic question'?

AA: How has the Sri Lanka government reacted to the report?

KPJ: The report has gone to the government and has been cited, I believe, as an independent study in the European Commission's recently released GSP Plus report which was very critical of the government's commitment to the rule of law. I have not had adverse reactions in that sense. I believe that this is due to the thorough documentation in the study as well as the analysis which attempted to be as objective as possible. I am also (sometimes) quite paranoid in preserving my independence as a writer and critic and though I have come under attack sometimes by government propagandists, these attacks have not had sustained force or effect due to the very fact that I have stood aloof from any political association.

AA: To outsiders it seems as if civil and human rights are under attack. If true, is this the result of the war with the Tamil Tigers?

KPJ: My answer above also partly answers this question. In brief, it is not the war with the LTTE alone that is the crux of the issue. Civil and political rights have been under attack in the context of two southern insurrections as well, first in the seventies and then in the eighties/early nineties. We have had emergency law in place for the better half of well over three decades. All this have been contributory factors.

AA: Surely civil and human rights should have been strengthened following the defeat of the Tigers?

KPJ: Well, we should have at least seen a rolling back of the emergency regulations which has not been done. However, in recent weeks, there appears to be a slight softening of the government's hard-line position. Some individuals including a human rights activist of Sinhalese ethnicity who was arrested at the airport allegedly for having in his possession documentation pertaining to the then ongoing conflict, have been released on bail. A publisher and his wife who were also arrested in the Tissainayagam case have been released. This slight change is probably due to the fact that cracks have appeared within the government ranks. But these are grudging concessions. We need to see the government wholeheartedly committing itself to the restoration of the rule of law to our governance systems in the first instance, by restoring the 17th Amendment to the Constitution which lessened the presidential power in making appointments to the important public posts and constitutional commissions overseeing the police, the public service and elections.

The Human Rights Commission should also be allowed to function independently and should have good commissioners. The last four years were an utter disgrace where this body was concerned. Cases such as the Tissainayagam case where a journalist of Tamil ethnicity was sentenced to 20 years for two articles that he wrote as well as on a charge that he had got a paltry sum of money from the LTTE for publishing a little known magazine in which these articles were printed (this third charge was related to a confession, which he disputed as being tampered with, and to some bank statement showing anonymous donors) also reflects very badly on us. Here, the publisher has been released due to want of evidence but the journalist remains convicted!

AA: How widespread is the instance of the police and other forces using torture against suspects?

KPJ: This is widespread, though, as the UN Special Rapporteurs have noted, not systemic.
Torture is inflicted by law enforcement officers for interrogation purposes and as a pure abuse of power. The risk of torture is increased by the lack of practical application of basic legal safeguards, including the right to be brought before a judge within a reasonable amount of time. Fabrication of charges by police officers in order to justify arrest and torture is common, as is torture of suspects on the basis of mistaken identity.

AA: Are vigilante groups active in Sri Lanka and to what extent do they have the blessings of the authorities?

KPJ: They were indeed active at one stage though this has now decreased. During the time that they were in operation, the way that they conducted their activities such as carrying out abductions in the heart of high security zones in Colombo made it hard for a commonsensical observer not to conclude that some sections of Sri Lanka's government knew very well what was going on, at the very least.

AA: Has the work of human rights lawyers been affected by the decline in the rule of law?

KPJ: Yes, of course. Lawyers have been threatened, one had his office burnt down and another had a grenade thrown at his house. There is a culture of subtle intimidation at play as well as open threats.

AA: How has the media been affected? Are journalists leaving the country because of fears for their safety?

KPJ: Again, the answer to this question is quite unfortunately in the positive. Media freedom has been one of the first and most visible casualties in this regard. Quite apart from the high profile case of the assassination of the editor of the Sunday Leader, the number of journalists who have been threatened and have had to leave the country are numerous. None of these cases have been satisfactorily investigated, let alone prosecuted.

AA: The tiff between the president and the army chief has been reported all over the world. How is this likely to impact the lives of ordinary Sri Lankans?

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