Judicial Procedure before the Magistrate Court

Background and Mandate

The first legal procedure instituted following the incident was the one presented before the Magistrate Court, the common law’s court of first instance. The magistrates are responsible for assisting and directing the conduct of preliminary investigations led by the criminal police following a complaint. The aim of this procedure is to ensure the judicial monitoring of the enquiry, led by the police. An attorney representing the prejudiced parties was hired by ACF and representatives of the organisation were equally in attendance during all the stages, in order to monitor the proceedings.

Although the procedures before the Magistrate Court promptly exhibited troubling irregularities, ACF decided to monitor the case with the utmost respect in order to assist the judicial process.

However, months have gone by and the case is still at the initial phase of the investigation. ACF has identified an important number of breaches and flaws; specifically relating to interferences of officials in the judicial process and in the police enquiry; and the witness protection procedures. These irregularities have directly affected the inquiry and reduced the chances of success of such a procedure.

Main critiques

After monitoring the case for 18 months, ACF has come to the conclusion that fundamental principles of justice were not respected.

• Absence of independence and impartiality, lack of transparency in the judicial process.

Political interventions in the judicial process have directly altered the independence and impartiality of the officers in charge of the case. These practices, which in no way constitute proofs of guilt, lead us however to question the interest authorities have in influencing the good progress of the enquiry.

For example, the ACF case was heard by three different magistrates, who proceeded to five transfers of jurisdiction. In addition to their effect on the quality of the necessary follow-up in this case, the legitimacy of these substitutions and transfers has sometimes been clearly questionable, and can thus raise questions about the independence of the justice system. Indeed, it is the secretary of the Justice Minister who issued the order concerning the jurisdiction transfer from Trincomalee to Anuradhapura, which in turn conveyed the order to the Court by phone.

Furthermore, one of the basic principles of penal justice, the principle of territoriality, was not respected during these transfers, and no legal justification was given. Consequently, this case was notably transferred from a Tamil magistrate from the region where the crime was perpetrated, to a Singhalese magistrate appointed in a remote jurisdiction. By moving the case away from families and potential witnesses, the authorities have not aided the enquiry, and have made obtaining potential testimonies rather difficult. It is worth noting that on 28th November 2007, the case was transferred back to the magistrate of Muttur (who was appointed in September 2006 and is not the same magistrate originally in charge of the case).

• The ambiguous role of the Attorney General’s office

ACF is seriously concerned about the contradictions in the intervention of the Attorney General’s office in this case, as well as about his random pronouncements, and the lack of clarity he has shown in directing his instructions.

Here is an example to illustrate this point: ACF had promptly requested the exhumation of the bodies in order to conduct autopsies. After rejecting our request, the office of the Attorney General finally agreed to our demand, while adopting a questionable attitude. In effect, he started by authorising the exhumation of only two bodies, arguing that the others would be exhumed only if the first examinations did not yield concrete elements of proof. Under pressure, toward the end of October 2006, representatives of the Attorney General finally agreed to authorise the exhumation of all the bodies. This attitude has clearly delayed the gathering of crucial proofs for the enquiry.

• Failure to conduct an efficient enquiry
Whether or not they did it intentionally, the Sri Lankan authorities failed to take the appropriate measures to conduct a diligent enquiry.

For illustration, police officers from Muttur and Trincomalee have shown, since the very beginning of the case, a total lack of cooperation and responsiveness. The authorities should have taken all necessary measures to protect the scene of the crime, and therefore the proofs. Neither the army nor the police took any steps to secure the premises. This resulted in a time-lag of two to three days between the killings and the first official intervention on the scene of the crime, which took place on 7th August  2006. Thus, the exact time of death, which could have constituted an essential element in determining the guilt of one or the other party in the conflict, could not be established.

Furthermore, and right after the second autopsy  conducted by the Sri Lankan medical examiners in the presence of an Australian observer, rumours reporting the presence of two different sized projectiles, from weapons of types T-56 and M-16, started circulating. This simple detail is very important as some witnesses have asserted that Special Forces , carrying automatic weapons of the M-16 type, were present in Muttur during the hostilities. This could have given a new direction to the enquiry; but due to a lack of care shown in handling elements of proof (such as breaking the chain of transmission of sealed parcels), it was not possible to confirm or quash these allegations.

• Absence of witness protection
It is important to state that, in such cases, it often falls on the civilians to produce proofs, when the police fail to do so. However there is no system in place to protect witnesses. This absence of protection is a real national problem, for many people are scared of testifying for fear of being persecuted or even murdered.

According to the rules of international law, the State has an obligation to properly investigate serious violations of human rights. The absence of any progress, the probability that these proceedings in front of the Magistrate court lead somewhere is extremely weak. ACF is concluding that this proceeding is exhausted and that, consequently, the perpetrators will probably not be brought to justice by the Sri Lankan authorities. ACF considers therefore that all attempts to obtain legal remedy have been exhausted.

 Insert – International Commission of Jurists (ICJ)

The International Commission of Jurists is an organisation “dedicated to the primacy, coherence and implementation of international law and principles that advance human rights” at the national level. It therefore monitors the implementation of international human right laws by the national authorities.

During its mission in Sri Lanka, the ICJ released two reports, and both came to the same conclusions as those of ACF: they identify numerous irregularities concerning the manner in which  the enquiry was conducted by the police department, as well as the judicial process conducted by the different judges.