GENEVA (10 May 2016) – Two United Nations experts have urged Sri Lanka to replace the legal framework that allowed serious human rights violations to happen and establish sound democratic institutions in line with international human rights standards.
“Sri Lanka is taking steps to draft a new constitution, an undertaking that presents an opportunity to reinforce the independence and impartiality of the justice sector and provide more safeguards against torture and other serious human rights violations,” said Mónica Pinto and Juan E. Méndez, respectively the UN Special Rapporteur on the independence of judges and lawyers, and on torture and other cruel, inhuman or degrading treatment or punishment.
The experts, speaking at the end of their official visit to Sri Lanka on 7 May*, welcomed the fact that the elections in 2015 had brought an opening in the democratic space. “The change in government has led to some promising reforms, such as the re-instatement of the Constitutional Council. But more reforms are needed before Sri Lanka can be considered to be on a path to sustainable democratization,” the two experts stressed.
“The testimonies I heard from victims, including detainees, who took the risk of speaking to me despite safety concerns, persuade me that torture is a common practice inflicted in the course of both regular criminal and national security-related investigations,” said Mr. Méndez. “Severe forms of torture continue to be used, although probably less frequently, while both old and new cases of torture continue to be surrounded by total impunity.”
The nature of the Sri Lankan criminal justice system may indirectly incentivize the use of torture, Mr. Méndez noted, highlighting in particular the practice of extracting a confession to build a case. “I have been assured by the authorities that confessions alone are not sufficient evidence for a conviction, however, in practice, 90 per cent of convictions are either solely or mainly based on a confession,” said the expert.
“The government has to ensure that every person detained has access to a lawyer from the moment of the arrest and that every person is properly informed about this right,” Ms. Pinto added.
“Legal safeguards are even more limited in the cases brought under the Prevention of Terrorism Act (PTA) – a piece of legislation that applies to investigations into national security-related offences. The PTA allows for prolonged arbitrary detention without being charged, limits access to a lawyer and provides for statements made to a senior police officer, even when obtained under duress, to be fully admissible in court,” the experts stated.
“The government should repeal the PTA. Any legislation to replace it, if considered necessary, should only be adopted after broad and transparent consultations and must fully comply with international human rights standards,” the Special Rapporteurs stressed.
The two experts also highlighted significant delays in the administration of justice in Sri Lanka.
“Even in ordinary cases that are non-political and not related to the armed conflict judicial proceedings can last years. Such delays often amount to a denial of justice, especially for victims and suspects remanded in pre-trial detention,” Ms. Pinto said.
“Suspects are subjected to lengthy remand periods with many being detained for years, some even up to 15 years before trial. I urge Sri Lanka to make use of bail and alternatives to incarceration, especially for non-violent offences,” Mr. Méndez said.
“The administration of justice must be more transparent and democratic. Transparent procedures and institutions play an important role in strengthening democracy and protecting from arbitrariness,” said Ms. Pinto. The expert recommended that the Sri Lankan authorities urgently review and publicize the procedures for the appointment, transfer, promotion and discipline of judges and State counsels.
In this context, she noted the extreme politicization of the removal procedure in force for judges of the Supreme Court and Court of Appeal. Recalling the highly controversial impeachment of the Chief Justice in 2013, she urged the authorities to replace this procedure with one that safeguards independence and provides for all due process guarantees.
“I am also concerned that the diversity of the population is not reflected in the composition of the judiciary, the Attorney-General’s office, or the police, or in the language in which proceedings are conducted. The authorities should take immediate measures to increase the representation of minorities in these bodies and ensure the availability of quality interpretation and translation,” Ms. Pinto added.
“I did not receive any complaint of mistreatment in prison, but I am deeply concerned about the more than deplorable prison conditions, including deficient infrastructure and severe overcrowding,” Mr. Méndez said. “In addition, I have come across cases of prolonged or indefinite isolation in Terrorism Investigation Division detention facilities. These combined conditions constitute in themselves a form of cruel, inhuman and degrading treatment.”
Regarding transitional justice, the experts concluded that serious reforms to the justice sector should not only reinforce its independence, but also contribute to guarantees of non-recurrence. If implemented in good faith and trusted by victims, transitional justice measures can also fulfil the State’s obligation to investigate, prosecute and punish acts of torture, thereby contributing to preventing their persistence in the future.
The Special Rapporteurs will each present a comprehensive report containing their findings and recommendations to the Human Rights Council in Geneva in March 2017 (Special Rapporteur torture) and June 2017 (Special Rapporteur independence of judges and lawyers).
(*) Check the full end-of-mission statements of both Special Rapporteurs:
Special Rapporteur on the independence of judges and lawyers: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=19942&LangID=E
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=19943&LangID=E
Ms. Mónica Pinto took up her functions as UN Special Rapporteur on the independence of judges and lawyers on 1 August 2015. Ms. Pinto is a professor of international law and human rights law at the Law School of the University of Buenos Aires, where she is currently the Dean. She has long-standing experience working on human rights issues in a variety of settings, including for the United Nations. She has also appeared as legal counsel and/or expert before different human rights bodies, arbitral tribunals and the International Court of Justice. Learn more, log on to:
Mr. Juan E. Méndez took up his functions as the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in November 2010. He has dedicated his legal career to the defense of human rights, and has a long and distinguished record of advocacy throughout the Americas. Learn more, log on to:
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
UN Human Rights, country page – Sri Lanka: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/LKIndex.aspx
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