Colombia’s Example and Our Calamitous Blunders

Dec 19 2016 - There is a reason why the peace deal of the Colombian Government with the Revolutionary Armed Forces of Columbia (FARC) became a reality despite formidable obstacles. Credited with brokering the deal and bringing to a close, one of the deadliest and longest-running civil wars in Latin America, Colombia’s President Juan Manuel Santos,Nobel Peace Prize Laureate for 2016 attributes his success to putting the victims at the heart of the process.

‘This succeeded because we made sure that the victims were prioritised in every way possible and were not made to feel irrelevant’ he said, soon after accepting the award.

Colombia’s difference in national dialogue
The Colombian example was singular. Its national dialogue was not limited to exclusively elitist pockets of opinion but reached out even to those who had earlier responded negatively in a national plebiscite, including religious and trade union leaders. Comprehensive revisions were made in the draft as a result. Santos now has the heavy responsibility of implementing the accord but the start has been promising.

There are valuable lessons that Sri Lanka’s Unity Government can learn from the Colombian President’s trenchant advice. One strong focus there has been the importance given to reform of national laws, policies and practices in an inclusive and open manner rather than secretively.

And if last week’s Concluding Observations by the United Nations Committee against Torture (UNCAT) is any indication, the Government needs to pull up its game and respond properly to the multitude of challenges looming before it in the coming months Change in Government, no panacea.

Last week’s column examined the UNCAT’s Observations issued in response to Sri Lanka’s periodic report submitted in terms of the Convention against Torture. The same focus will be continued for this week due to its overriding importance. These are precisely the key points which reform should address.

The UNCAT’s recommendations concerned systemic patterns of impunity in the South as well as in the North. Flamboyant promises and artificial assurances will not serve as a miracle cure for these ills. Instead, carefully structured reforms are needed that put the victims at the core of the process. These reforms must address the investigative, the prosecutorial and the judicial pillars of the system, all of which have been seriously compromised.

The Committee stated quite rightly that torture was most evidenced during the initial hours of interrogation. Police investigators often fail to register detainees during this period, providing them with opportunities to abuse at free will. Remarking that neither the Attorney General nor the judiciary exercises sufficient control over orders of detention, the Committee called for safeguards wherein even judges who fail in their judicial duties in this regard should be held to account.

Rejecting regressive measures
And so, it is precisely at this point that safeguards had to be provided to detainees including prompt access to counsel, the right to notify relatives and the need to install video surveillance in all places of custody except when the right to privacy or the right to confidential communications with a lawyer or a doctor may be at issue.

The UNCAT did not take kindly therefore to a recently proposed (and withdrawn) amendment to the Criminal Procedure Code seeking to bar prompt legal access to detainees. Neither did it respond well to another problematic effort to enact a counter-terror law which was more draconian than the Prevention of Terrorism Act (PTA) which it sought to replace.

In fact, the abuse of detention laws forms a main thrust of this report. Pointedly it was observed that forthcoming legislation on national security should adopt a precise definition of terrorist acts and guarantee the requirement of strict necessity and proportionality with the ensuring of effective judicial review. Reflecting on the pattern of forced confessions under the PTA, the Committee expressed alarm that the proposed counter-terror law continues to allow this.

Judicial diligence and punishment in lack there of
Given the Committee’s finding that judges do not exercise their discretion in examining cases of alleged torture with due diligence, it was pointed out that judicial review to test the voluntariness of the confession was itself not a sufficient safeguard.

And to be plain, the point made by the UNCAT regarding the absence of judicial due diligence has often been reflected in comments made by Sri Lanka’s appellate courts that litter our constitutional jurisprudence. In that regard the Committee’s recommendation is difficult to disagree with.Judges must actively ask the detainees about their treatment during detention and request a forensic examination. If they fail to respond appropriately to allegations of torture raised during judicial proceedings, they must be appropriately disciplined.

Independent investigation of torture allegations
The jurists also called for the enforcement of Sri Lanka’s Evidence Ordinance in all cases including in terrorism related offences as well as ensuring the right of a detainee to have access to an interpreter.

It reminded the Sri Lankan State of its duty to ensure that detained persons are promptly brought before a judge and in any event, not exceeding 48 hours. Arresting officers must register the exact date, time, ground for the detention and place of arrest of detainees.Officers who fail to adhere to the law or ensure that their subordinates do so, must be penalized.

The State was also requested to establish effective prosecutorial oversight over the police. Statements obtained during police interrogation must not be relied on as the central element of proof in criminal prosecutions. And an independent body must head the investigation of torture.

Refraining from foolhardy provocation
Among this plethora of recommendations, one fact is certain. The UNCAT’s response last week was notably harsh. Perhaps the quite flagrant if not foolhardy provocation presented before its astonished members in the subversive form of an intelligence chief being part of the State delegation was one reason. We shall never know.

Whatever it is arrogance or ignorance driving Sri Lanka’s calamitous blunders that we constantly see, this needs to stop.

This story was originally published by The Sunday Times, Sri Lanka

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