In January this year, four judges of the Indian Supreme Court gave a press conference to declare that “all is not well” with the Indian Judiciary. The judges said they were compelled to take the unprecedented step of speaking to the press to express their concerns about the integrity of the Judiciary, because they didn’t want people saying that they had ‘sold their souls’, 20 years down the line. The story was carried in the Indian media, including in the Indian Express, which is where it caught our Eye.
Last month, in Sri Lanka, Ranjan Ramanayake, Deputy Minister for Social Empowerment and Welfare, in his characteristic fiery style, expressed similar opinions about the Sri Lankan Judiciary in Parliament, during the debate on the Judicature (Amendment) Bill. He stated that while criminals, thieves, and murderers are going about their ‘duties’, the law enforcement institutions, lawyers and the Judiciary work together to ensure that justice, is in fact, not done. He said criminals have become clients of a system in which money and political patronage determines guilt and innocence. He openly named those he believes are ‘corrupt judges’, and also said that the intimidation of good and impartial judges serves to undermine and paralyse the Judiciary in Sri Lanka.
True to form, the response of the Joint Opposition (JO) to the speech was to charge Ranjan Ramanayake with contempt of court, and to accuse him of insulting the Judiciary and lawyers. Ramanayake is already the defendant in a contempt of court case filed by the Bodu Bala Sena and a retired Army General, for remarks he made about a former Minister of Justice in August 2017. This time too, no doubt, there would have been another case or two against him if not for the fact that he is protected by Parliamentary privilege.
Perhaps the JO missed the fact that the question of impunity, slow progress and the double standards of the justice system with regard to the treatment of State officials and security personnel accused in criminal proceedings, have all been raised in the Annual Report of the UN High Commissioner for Human Rights. The High Commissioner’s Report to the 37th Sessions of the Human Rights Council, which concluded on 23 March in Geneva, provides an update on progress relating to the implementation of Resolution 30/1 on promoting reconciliation, accountability and human rights in Sri Lanka.
The report highlights several ‘emblematic cases’, including the disappearance of journalist Prageeth Eknaligoda, the killing of five students in Trincomalee, and the killing of Editor Lasantha Wickrematunge.
What struck Cat’s Eye about the High Commissioner’s report was not merely the reference to ‘emblematic cases’, but that the report also calls on member states of the United Nations, where appropriate and relevant, to exercise ‘Universal Jurisdiction’ in the absence of a credible domestic judicial mechanism in relation to war-related human rights abuses in Sri Lanka.
Universal Jurisdiction is an increasingly important principle of International Law, aimed at combating impunity and bringing justice to victims. It acts as a complementary mechanism which can hold perpetrators to account for the most serious crimes under international law. In theory, the principle allows any State to investigate and prosecute individuals for crimes committed in other countries.
Perhaps the most well-known legal precedent for Universal Jurisdiction is that of General Pinochet. The former Chilean President was detained in London in October 1998, in a move that changed the idea of international justice, followed by a lawsuit which was filed in Chile before a Spanish National Court. Dozens of victims of the Chilean military repression travelled to Spain to give testimony before the Spanish National Court. It was the first time a former head of state had been arrested based on the principle of Universal Jurisdiction.
The idea of Universal Jurisdiction clearly poses a challenge to the sovereignty and territorial integrity of UN member states. However, if a member state of the UN fails to exercise its sovereign responsibility to deliver justice to its citizens in the case of offences considered violations of international humanitarian and human rights law, then you cannot accuse another country of stealing or infringing on your sovereignty!
Relevant to this conversation are the four cases filed against General Jagath Jayasuriya (former Ambassador) in Colombia and Brazil, under the principle of Universal Jurisdiction. Even though the Ambassador enjoyed diplomatic immunity and could not have been arrested, he felt compelled to leave the Latin American region, and now faces the possibility of arrest and prosecution under an international judicial process when he travels abroad.
Yet in our view it is not enough to talk of impunity only in relation to the lack of accountability for war crimes. The problem of impunity goes much deeper and reflects the structural inequalities of our society, based on race, class, caste and gender (among other factors). It is imperative for us to begin to connect the dots and highlight the continuum of impunity that plagues the criminal justice system in Sri Lanka. We need to connect Ranjan Ramanayake’s speech about the Judiciary to the High Commissioner’s report on transitional justice.
A climate of impunity
Impunity simply means “escaping punishment”. A climate of impunity arises when it becomes the norm in a country that cases are not efficiently dealt with and perpetrators are not held to account.
Cat’s Eye sees patterns of impunity in Sri Lanka from violence against women, to violence against ethnic minorities to violence against sexual minorities. Past impunity sustains present-day impunity. Women and other marginalised persons and communities feel the worst effects of impunity all too often. State actors at every level, from the Police, to the judicial medical officers, Attorney General’s Department, to the district courts to the Supreme Courts are all complicit in upholding institutionalised impunity.
If we look at Police statistics1 relating to rape and sexual violence, it is impossible to miss the extent to which the criminal justice system routinely fails rape complainants, the majority of whom are women. The year 2017 saw a rise in reported incidents of rape, recording 1732 complaints of rape, but no convictions were recorded in the same year. In 2017, a mere 11% of complaints resulted in the filing of cases against the perpetrator. A large number of cases are pending.
Once inside the courts, it’s no better: ample anecdotal evidence highlight the appalling treatment of women in district courts, by the Judiciary, both directly and indirectly via permission of sexist, derogatory language and behaviour toward them. This hostile environment creates a significant barrier to women seeking to access justice. Despite all this, women are expected to continue to have faith in this system. The onus is always placed on victims, who are supposed to ‘step forward’ and report violence!
The recent wave of organised violence against Muslims was another stark reminder of the impunity enjoyed by the perpetrators of similar violence in the past. Violence unleashed on Muslim communities by groups such as Bodu Bala Sena, Sinhala Ravaya and Mahasohon Balakaya have gone unpunished for years, even with sufficient evidence captured on CCTV cameras to easily identify and apprehend those responsible. What of the attacks on Fashion Bug in 2013, and the spate of organised violence and crime in June 2014 in Dharga Town, both of which resulted in no convictions?
It would not be too far-reaching to say that the sheer inaction following those incidents grossly foreshadowed the most recent violence in the Central Province.
Even in the aftermath of such violence, we can see once again how the processes fail those already marginalised. Cultural barriers and entrenched sexism prevent an honest dialogue with women victims, with regard to losses and injuries faced by them, and their specific needs. If and when ‘community representatives’ are summoned for consultations on assessment of loss and reparations, it will almost always be men.
A culture of silence and impunity also prevails in relation to offences such as discrimination and hate speech against minorities. For example, incidents of hate-speech and discrimination against members of LGBTIQ communities, including but not confined to social media, are widely documented, but are not dealt with legally.
Penal provisions dating back to colonial law which put in place punitive measures are continued to be interpreted to criminalise consensual same-sex relations between adults, even in private places (Sections 365 and 365A of Penal Code). Thus members of the LGBTIQ communities are persecuted, often by State representatives and law enforcement officials. The fear of being “outed” makes them vulnerable to law enforcement and prevents them from reporting offences (even ordinary crimes) committed against them. This renders LGBTIQ persons unable to access redress or remedies and unable to exercise their basic human rights.
Raise voices for justice
While the international community holds a spotlight on emblematic cases in the halls of the UN in Geneva, it is our duty to highlight impunity for so-called ordinary crimes and to provide all victims with answers and reparations. As much as it is necessary to establish special courts for war-related human rights abuses, it is necessary to reform the criminal justice system within Sri Lanka.
Though celebrated as a start to addressing impunity, the proposed amendments to the Judicature Act are limited, and therefore its impact will be limited unless it seriously addresses the overall prevailing continuum and culture of impunity in Sri Lanka.
We salute Deputy Minister Ranjan Ramanayake for his critique of the current status of the legal establishment and the Judiciary in Sri Lanka and his fierce commitment to speak “thiththa aththa” (bitter truth). It is a sad irony that contempt of court has acted as a cover for any serious critique of the Judiciary in Sri Lanka. Indeed, these are perhaps the only cases which are swiftly concluded and where offenders punished disproportionately!
Reform of the judicial process has to be an exercise which is driven by the Legislature as much as by the legal establishment: the Judiciary and lawyers. The Bar Association should provide leadership, rather than the extremely negative and partisan role that they have played in undermining the judicial process. The four Indian Supreme Court judges should serve as an inspiration for those who have been silently complicit in the decline of the rule of law in this country.
Cat’s Eye makes a strong appeal to lawyers and judges – break your silence about the way the judicial system has been systematically compromised and undermined over the years; raise your voices for justice. You don’t want to be accused of selling your soul.
(The Cat's Eye column is written by an independent collective of feminists, offering an alternative feminist gaze on current affairs in Sri Lanka and beyond.)
1 Grave crime abstract for the year 2017 for the whole island from 01.01.2017 to 31.12.2017: www.police.lk.