Mr / Madame Chairperson,
Many important issues are raised in the initial report of the working group on the administration of justice (E/CN.4/Sub.2/2004/6), including the fact that frequently investigations into human rights violations have not been handled properly.
The working paper on the implementation in domestic law of the right to an effective remedy against violations of human rights by State agents (E/CN.4/Sub.2/2005/15), noted that the lack of effective domestic redress may lead to institutionalisation of violations, and may contribute to a climate of impunity, and to the systematic or widespread occurrence of violations.
Mr / Madame Chairperson,
Article 29 of Sri Lanka 's 1948 constitution specifically denied capability to the Parliament to make laws discriminatory to, in favour of or adverse to any one community which were not equally applicable to the other communities. Solemn assurances were given that the ethnic majority would not avail themselves of the numerical superiority to discriminate against the Tamils. The Privy Council held that this Article 29 was an entrenched clause and rendered the constitution and not Parliament sovereign.
In 1972, twenty four years after independence from British rule the dominant Sinhala Buddhist majority gave itself an a~tochthonous constitution, renamed the island as 'Sri Lanka' (the old Sinhala name)` ensured that the Constitution secured a dominant role for Buddhism. The constitutional safeguards which had hitherto debarred the enactment of discriminatory legislation were scrapped.
Racist legislation and racism have been at the heart of the political problems in the island of Sri Lanka since independence. Racist policies implemented on citizenship, language, education, land and other areas discriminate severely against Tamils.
Rule under Emergency Regulations (ER) has become the norm - for more than 30 years since 1948. The Prevention of Terrorism (Temporary provision) Act, made permanent in 1982, gives wide powers to the police to arrest and detain Tamils for a period of 18 months at a stretch without being produced in courts. This Act gives a free hand to the Security forces to arrest, detain, torture, rape, kill and dispose of bodies with impunity. Confessions obtained under torture are admissible in evidence and shift the burden of proof to the accused. Many detainees continue to languish in jail, without charge or trial.
Voices expressing concern have been raised over the years in this and other august human rights forums with regard to these systematic human rights violations and lack of effective domestic remedies.
In document (E/CN.412002/72), the Special Rapporteur on the Independence of Judges and Lawyers quotes from the report of a mission to Sri Lanka composed of distinguished jurists, who found "the perception of a lack of independence of the judiciary was in danger of becoming widespread".
The Human Rights Committee (HRC), in its concluding observations of November 6 2003, stated that it remains "concerned that Sri Lanka's legal system still does not contain provisions which cover all of the substantive rights set forth in the ICCPR (International Covenant on Civil and Political Rights) ".
The HRC is concerned about - the inconclusiveness of prosecutions against police or armed forces officers, on charges of abduction and torture ; the state party's inability to identify, or inaction in identifying those responsible for the large number of disappearances ; the ignoring or rejecting of allegations of violations of freedom of expression ; persistent reports that media personnel and journalists face harassment and the fact that victims of human rights violations have been subjected to intimidation and/or threats, thereby discouraging them from pursuing appropriate avenues to obtain an effective remedy.
Mr / Madame Chairperson
The pattern of bias in the Sri Lankan judicial system and the Supreme Court is well recorded.
After delays and postponements, eventually the culprits of the Bindunuwewa mass murder in October 2000, in which 27 young detainees were brutally murdered, were simply acquitted by the Supreme Court.
In the case of the Kokkadicholai massacre of 1991, the Kokkuvil massacre of September 1990 or Kumarapuram massacre of February 1996, none of the security personnel involved have been prosecuted. The Kokkuvil massacre and Kumarapuram massacre cases continue to drag on in the courts.
After the Attorney General had indicted eighteen Sinhala soldiers of the Sri Lanka Army with the murder of thirty-five Tamil civilians including fourteen children in the Mylanthanai village in Batticaloa district on August 9 1992, all the eighteen accused were acquitted by the High Court Judge in Colombo . The soldiers had made successful application to have the inquiry transferred to Colombo , for their safety - regardless of the lack of safety for the victims' witnesses, who had to travel to areas where they felt unsafe and were intimidated. The Sinhalese speaking Jury, for which the soldiers had made successful application, brought a unanimous verdict of not guilty.
We are sad to have to report that there has been no progress on the case of the assassination of Mr Kumar Ponnambalam on 5 th January 2000, despite ample evidence regarding the alleged perpetrators of the crime. There has been no proper investigation or punishment of culprits in the many cases of murders of human rights defenders and journalists, Mr G. Nadesan, Mr M. Nimalaraj, and Mr D. Sivaram. Delayed justice is justice denied.
Recently a statue of Buddha was erected illegally in Trincomalee, with political motivation, intent on causing tension among local communities, and clearly not for worship. The local District court ordered the removal of the statue, a decision overturned by the Supreme Court. Increased armed forces have been stationed in the town, presenting a picture of being under military occupation. Local people feel insulted and humiliated by this unwarranted oppression, and demand impartial implementation in the enforcement of law and order.
The Supreme Court, upholding a petition filed by Sinhala extremists on 15 t " July 2005 issued a stay order suspending four key provisions of the recently agreed Post-Tsunami Operational Management Structure (P-TOMS). This shows the inherent bias in the Sri Lankan Courts against Tamils, even in the face of the suffering caused by the catastrophic tsunami disaster of last December 26. When the structure was approved on 24 t " June by both parties, the tsunami victims hoped they would receive the aid that many in the world so generously gave. But after waiting more than six months they are bitterly disappointed by the action of the Supreme Court.
Mr / Madame Chairperson
Two thirds of the NorthEast of the island is not under the purview of the Sri Lanka judicial system. In these areas the Tamil Eelam police, founded in 1990, and the Tamil Eelam judicial system are functioning well, are effective and accepted by the people in that area. The Tamil Eelam courts started functioning in 1993. Presently there are 120 lawyers and 26 Judges who have graduated from the law college of Tamil Eelam .
Mr I Madame Chairperson
Human Rights organisations have been raising the urgent matter of the systematic human rights violations of Sri Lanka 's armed forces and the lack of effective remedies in the Sri Lankan judicial system year after year in this august forum. Expatriate Tamils demonstrated recently outside UNESCO headquarters regarding the illegally erected statue of Buddha in Trincomalee.
Our urgent concerns are also of impending war should the situation deteriorate further.
We believe that this Sub-Commission can be a vehicle to express the noble values and aspirations for humanity that underpin all true efforts to promote and protect Human Rights and thereby make a real and valuable contribution for the good of all the peoples of the island of Sri Lanka .
We appeal to you to take action. Thank you.
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