The report, which was compiled by Ms. Pinto following her mission to Sri Lanka from April 29 to May 7 last year, was tabled by new Rapporteur Diego García-Sayán at the ongoing 35th session of the UNHRC.
Tabling the report Mr. García-Sayán said although the armed conflict was concluded in 2009, very deep wounds could still be seen in the judicial system.
He said there have been reforms and some steps forward but gradual worsening of the situation in the judiciary during the armed conflict was visible.
Quoting the report, he said there was a lack of equal representation of minority groups in the prosecution services and police force. “Problems related to language are very serious and have a very serious effect on justice and on the likelihood of obtaining a fair process if you belong to the Tamil community,” he said.
He said authorities were urged to put in place transitional justice mechanism to tackle the past comprehensively and stress was made that there ought to be impartial, credible and effective authorities working in this transition process.
Ms. Pinto in her report said the language problems have a dramatic impact on access to justice and respect for fair trial and due process guarantees for Tamil-speaking people, and need to be addressed urgently.
Commenting on the Bar Association of Sri Lanka, she said it has been during certain periods strongly divided along political lines.
She said she was told of judicial delays that were nothing short of dramatic and criminal proceedings could drag on for 10 to 15 years, even in cases that were not politically sensitive.
“For instance, a lawyer mentioned being involved in a trial for rape that had recently been completed after 15 years. There were also examples of civil cases that had been pending for more than 30 years. Divorce matters could take eight or more years to be resolved. Such delays clearly amount to a denial of justice, which especially affects the lives of victims, their families and persons deprived of their liberty,” she said adding the Attorney-General’s department also largely contributed to judicial delays.
The report said the Special Rapporteur was told that judges frequently pushed defendants to plead guilty.
“Defendants were made to believe they could get a lighter sentence by pleading guilty, which was not always the case, and that their sentence would be shorter than the time they would spend in pretrial detention. When defendants plead guilty, judges can expedite their case and improve their statistics. The Special Rapporteur is alarmed by this practice, which seems to demonstrate a disregard for the interests of justice,” it said.
It said the victim and witness protection would continue to be a determining issue in the context of common crimes, abuses and violations committed by members of the security forces, as well as in the context of transitional justice mechanisms that have been created, such as the Office of Missing Persons, or that will be established, such as a truth-seeking mechanism or specialized court.
Referring to impunity, the report said it was widespread and that it has become a normal occurrence, thereby contributing to shattering the public’s confidence in its judiciary.
“Since the change of government, some positive steps seem to have been taken, as five new cases were reportedly being investigated at the time of the visit,” it said.
In conclusion, the 20-page long report said while the democratic gains of the past two years must be welcomed, it is important to recognize that much more could and should have been done to manifest a commitment to genuine reform, in particular in the justice sector, and to create a meaningful and participatory transitional justice mechanisms.
“Building a justice system that all sectors of society will trust and be able to rely on to defend and enforce their rights will take time. Bold steps need to be taken, as a sign of the authorities’ commitment to address the atrocities of the past and, above all, the structures that allowed such atrocities to happen. It is important to remember that justice must not merely be done, but must also be seen to be done,” the report said.
Making at least 49 recommendations, Ms. Pinto said the practice of plea bargaining should be clearly regulated in legislation, defendants should never be pressured into pleading guilty and should be informed in a language they understand of all the consequences and implications of pleading guilty.
While urging the repeal of the Prevention of Terrorism Act, the report said the authorities should study the backlog of tribunals and analyse the causes of judicial delays to design a comprehensive plan to improve the efficiency of the administration of justice, legislation should be urgently amended to allow every person arrested or detained to have access to a lawyer of his or her choice from the moment of arrest, an independent special office should be established to handle the prosecution of State officials and urgent measures should be taken to allow people from different sectors of society to be part of the justice system and to have access to it.
“A code of conduct for judges, in line with international standards such as the Bangalore Principles of Judicial Conduct, should be set up. The Attorney-General’s appointment should be clearly set out in law and include objective selection criteria, any impeachment procedure should be regulated by a law passed by Parliament, the composition of the Constitutional Council should balance the number of politicians with representation from civil society, the Constitutional Council should set out and publish its rules of procedures, including the criteria used to evaluate candidates’ suitability for a given position, which should be scrupulously and consistently applied,” were among the recommendations.
(Lahiru Pothmulla – dailymirror.lk)