Lalith Rajapakse: Five Sri Lankan Cases

From the publication: Dialectics of Justice: Five Sri Lankan Cases, Published with the permission of the author and Asian Human Rights Commission. March 2008

IT IS COMMON, when making one's way among the many victims of official abuse and human rights violations in Sri Lanka, to find people who have been waiting for three, four, or five years for their cases to be decided. Injustice may arrive swiftly-without notice, within a few seconds, out of nowhere. Then the years go by as the victim seeks redress. It becomes, in the end, another form of victimization, another form of injustice, not unrelated to the matter of official impunity. One is made a victim of abuse, and then one is made a victim again in the course of seeking to rectify the wrong.

LALITH RAJAPAKE WAS nineteen on the night of April 18, 2002. He is, at this writing, twenty-four, physically impaired and psychologically traumatized and still awaiting justice in the events that ensued.

On the night in question, several police officers arrived at the door of a friend's house, wherein Lalith was sleeping. For no reason evident to him at the time he was awakened, arrested, and taken to the police station in Kandana, a town about 20 kilometers north of Colombo. The torture that was to become central to his case began immediately: Lalith was beaten even in the jeep into which he was bundled outside his friend's house.

The U. N. Human Rights Committee later detailed Lalith's treatment at the police station: "He was forced to lie on a bench and beaten with a pole; held under water for prolonged periods; beaten on the soles of his feet with blunt instruments; and books were placed on his head which were then hit with blunt instruments."

These kinds of torture are familiar to those who study police practices in Sri Lanka. The last is intended to inflict internal injuries without leaving external marks. In Lalith's case, his grandfather eventually came to the police station and found him, slumped and lifeless, in a cell. He lay unconscious in a hospital for fifteen days afterward and was unable to speak coherently for nearly a month. He remained in treatment for another month; thereafter, the psychological stress prevented him from work. For two years Lalith lived in hiding, and he and his family survived on charity.

Three charges were filed against Lalith, and the torture was intended to extract a confession validating them. But none held up. There were two allegations of theft, which collapsed nearly a year and a half after they were filed, when it turned out the supposed victims of robbery had never claimed Lalith had stolen anything from them. The third charge was for allegedly obstructing the police in the discharge of their duties. It was not quite three years before a magistrate court acquitted Lalith of this charge.

Lalith took action on his own part. In May of 2002, just out of the hospital, he filed a case in the Sri Lankan Supreme Court charging that his fundamental rights, as guaranteed under the constitution, had been violated. His grandfather was a party to the case. A few months later the Attorney General, in apparent response to pressure from the U. N. Human Rights Committee, ordered an inquiry into the events that had led Lalith and his family into the courts. This led to a case in the High Court.

But the delays and irregularities have been many. Chief among them has been the pressure applied to force Lalith to withdraw from the legal process.

Threats against Lalith and his family have been more or less constant. And there are other details-bizarre, petty details that reflect certain routines the police often follow. A month after Lalith filed his fundamental rights case, a local fish trader (and a longtime acquaintance of Lalith's grandfather) was asked by the Kandana police to poison the fish the grandfather next bought. The fishmonger was also asked to let the police know where the grandfather liked to drink, so that his liquor, too, might be poisoned.

A few months later came threats to Lalith's life. These arrived by way of anonymous figures claiming to speak for the Kandana police-a claim the police denied. All the while, the police officers alleged to have tortured Lalith were permitted to continue serving in their customary posts. It was not until December of 2004 that Sub Inspector S.I. Peiris in Kandana and two other officers were barred from service and transferred. Sub Inspector Peiris was also indicted under the Torture Act of Sri Lanka.

LALITH'S EFFORTS pursue justice have been more successful than those of many other Sri Lankans. And it is because of this partial success that his case affords us a particular window into the judicial system, its workings, and the limits of international authority.

In May of 2005, the U. N. Human Rights Committee accepted Lalith's appeal, overruling the objections of the Sri Lankan government as to the admissibility of the case on the grounds that his human rights were violated. A little more than a year later, the committee ruled in Laith's favour: "The delay in the disposal of the Supreme Court case and the criminal case amounted to an unreasonably prolonged delay," the committee noted in its decision.

This represented a significant victory for Lalith, for his family, and for those human- and legal-rights organizations that have supported Lalith since he first filed his cases. But at this writing, in September of 2007, neither the Supreme Court case nor the criminal case against Sub Inspector Peiris has been settled.

Justice delayed, as the age-old principle holds, is justice denied. Yet for many Sri Lankans, justice delayed is all there is in the best of outcomes: It is a rare case that is accepted at the U. N. or by any other international organization devoted to upholding the rule of law. Most of the time, the universe of the law ends at the national borders.

Lalith's cases thus underscore a very uncomfortable truth in the struggle for justice in Sri Lanka: Even when cases of abuse and human-rights violations are taken up at the international level, the impunity with which the Sri Lankan authorities have long acted can still prevail.

In September of 2006, with Lalith's cases still pending (along with many others), Chief Justice Sarath Silva sought to elevate this impunity to the level of legal principle. Once again, the thought appeared to be that anything was permissible so long as it had the appearance of proper procedure.

Chief Justice Silva's ruling came in the case of a man charged with conspiracy to overthrow the government-a case connected with the war between the government and the Liberation Tigers. The defendant, having been sentenced to ten years of "R. I.," or rigorous imprisonment-that is, hard labour-successfully appealed to the U. N.'s Human Rights Committee. The committee ruled in the defendant's favour-a ruling Sri Lanka is legally committed to respecting. Silva, in an especially tortured instance of contorted legal reasoning, responded by invoking "the sovereignty of the People" to assert that Sri Lanka was, in fact, not bound to respect the U.N.'s rulings, despite being a signatory to the relevant covenants!

Among human-rights and legal-rights advocates and activists, the 2006 decision is considered a landmark in the all but complete corrosion of Sri Lankan justice.