Detained without charge in Sri Lanka

I’m a regular subscriber to Jurist, a legal news site run at the University of Pittsburgh. They write excellent explanations and backgrounders of the most interesting legal happenings around the world. This afternoon, I got news that Sri Lanka will be easing emergency regulations and reducing how long the terrorism suspects can be held with out charge. A few days ago, Sri Lanka’s president pardoned a journalist, J.S. Tissainayagam, who was arrested in 2008 under the country’s stringent anti-terrorism laws.

I wrote a piece in the Far Eastern Economic Review last year about Sri Lanka’s broken judiciary — the the emergency rules that extend executive power, violence against attorneys, and the inaccessibility of legal counsel, particularly for those from the embattled North. Much has changed on the island since the end of major conflict between the Sri Lankan Army and the Tamil Tigers (LTTE) last year, but judicial and constitutional problems still plague the country. The piece I wrote about this was a bit long [PDF] so here’s an excerpt:

Just before his retirement in June, Sri Lanka’s former Chief Justice Sarath N. Silva made unambiguous remarks about the state of the judiciary in Sri Lanka. At an event marking the opening of a new courthouse, he said that the IDPs [internally displaced persons] are being held in deplorable conditions and predicted their claims would not be heard in Sri Lankan courts. “They cannot expect justice from the law of the country,” Mr. Silva said.

The new Supreme Court Chief Justice Asoka de Silva, then, has a weighty task on his shoulders. He is taking the helm of an institution marked by the public’s waning confidence in the rule of law in relation to human rights. “Where the bench is concerned, it is my view that it forms the backbone of any civilized society,” he said. “If at any time, the bench is compromised, society begins to deteriorate from within and will end in anarchy.”

Those looking for justice in the courts are hoping that Supreme Court Chief Justice de Silva and the country’s leaders will be dedicated to that cause. In the absence of such reform, the legacy of Sri Lanka’s long war will be difficult to overcome.

Even if a detainee or an IDP is heard in court, Basil Fernando, executive director of the Hong Kong-based Asian Human Rights Commission, said fundamental rights petitions are rarely successful for the thousands being held for questioning about connections to the LTTE…In addition to long delays, those cases often go up against broad emergency regulations that give the government immense powers to detain terrorism suspects. At the end of August, the Supreme Court addressed the fundamental rights application of a young Tamil man from the north whohas been detained without charge for 17 months. The three-person bench, including Chief Justice de Silva, gave the attorney general and defense secretary four weeks to review their detention policy. Mr. Fernando says that this will not help detainees, however. The Supreme Court could have ruled on the validity of present laws, but instead passed its powers to members of the executive branch.

I wonder if these recent adjustments on the part of the current government are meant to restore some power to the judiciary, or if they simply show that the courts will still not be deciding what is and is not constitutional.  Will these concessions make a real difference to the lives of detainees? Will they help to heal the wounds of a long and bitter civil war? Some answers might come from the reality of the limitations to the actions of Parliament: The BBC reported that “those already detained under the emergency regulations will be kept in custody – they include more than 11,000 rebel suspects still to be charged. The Prevention of Terrorism Act, a draconian law separate from the emergency measures, is also to remain in force.”

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