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Hong Kong, China — On July 3 a convicted prisoner, Sainool Miswar, was assaulted and killed at the Negombo Prison in Sri Lanka on the very first day of his sentence. Thereafter an eyewitness, Saiyadu Mohammed Abu Ubaida, who had talked to the prisoner before his death, was also severely assaulted, both in prison and when he returned home, in order to prevent him from giving evidence against prison officers.

He was taken to the hospital where he was again threatened. The frightened man took refuge in a toilet and would not move until his family agreed to remove him from the hospital. Even hours after leaving the hospital he was still shivering and stated that he would certainly be killed if he were to tell anything about what he knows.

In a separate incident at Moratuwa a man named Sarath Kumara Naidos was held at the Moratuwa Police Station for nine days on suspicion of petty theft. He was allegedly assaulted throughout that period. When, at the request of the family and human rights organizations, many representations were made against this torture and illegal detention, the police by way of retaliation, filed charges for the possession of 2,300 milligrams of heroin – which effectively prevented him from getting bail and which also carries the death sentence in Sri Lanka.

The charge of possessing heroin was revenge for having made representations to higher police authorities and human rights organizations. The police reported arresting him on July 12 at 11:30 p.m., but Naidos had, in fact, been in police custody continuously since July 5. On several occasions family members, two lawyers and human rights activists visited him at the police station.

This type of event is common and would not surprise anyone who is aware of what happens at police stations in Sri Lanka. As one senior lawyer who has been engaged in criminal law for over 35 years mentioned at a regional seminar, only a fraction of such events come to public attention, often due to intervention by public interest groups. Mountains of other instances never come to anyone’s notice. Such is the state of criminal justice in Sri Lanka now.

How did this come about? One important landmark in the downfall of Sri Lanka’s criminal justice system was the state-sponsored program of violence in July, 1983. The law was completely suspended and crimes were carried out in broad daylight against the Tamil population in Colombo and elsewhere.

Two massacres in the Welikada Prison in Colombo remain the symbol of the horrors of July 1983. Thirty-five Tamil political prisoners were killed in the first massacre on July 25 and 18 survivors were killed two days later.

The inquest merely covered up the culprits. Two very senior officers from the Attorney General's Department, which exercises the function of prosecutor in Sri Lanka, Tilak Marapone and C.R. de Silva – who were both to become attorney generals of the country – took the position that the truth about these massacres would place Sri Lanka in an adverse position internationally.

Instead of redeeming the legal system by prosecuting those who massacred persons who were in prison and under the protection of the Sri Lankan state, the state attempted to hush up these crimes under the misguided belief that it would save the image of Sri Lanka. This was an important stage in the abandonment of the legal process and sustaining impunity. That process has now been extended to all areas of crime and the two incidents mentioned at the beginning of the article are bi-products of this process.

This way of dealing with the two massacres can be contrasted starkly with what happened not long before July 1983, when the trial against a Tamil activist known as Kuttimani ended at the court of Tudor de Alwis, one of the greatest trial judges of Sri Lanka, at the Colombo High Court. Before pronouncing the verdict in the case this highly experienced judge rose from his chair and addressed Kuttimani.

The judge said that when he sat down he would pronounce his verdict as required by law. However, before that, he wanted to state that he did not view Kuttimani as a common criminal. He further said that if one day the president was to grant a reprieve to Kuttimani he would be happy to hear of it.

Kuttimani replied to this courteously and with dignity. He said that if the death sentence was carried out, his eyes should be donated to someone who would have the good fortune to see a free Tamil Eelam. Tudor de Alwis sat in his chair and pronounced the death sentence on Kuttimani.

Being present in the court, I was privileged to witness this scene. Later Kuttimani was one of the victims of the prison massacres at Welikada.

The failure to genuinely investigate and prosecute the perpetrators of the massacres at the Welikada Prison has lead to massacres becoming a frequent occurrence in Sri Lanka. The Embilipitiya massacre occurred at the end of 1989. Despite all the evidence pointing to the disappearance of 48 Embilipitiya schoolchildren after they were held in a prison camp, the only charges filed were for conspiracy to commit acts of abduction or aiding and abetting to abduct in order to secretly and wrongfully confine certain unidentified persons. Once again the law and the institutions of justice failed to deal with a heinous crime – a massacre inside an army camp.

For the ordinary citizen every aspect of life today is terrifying. The law enforcement agencies can do whatever they like – arrest people without reason, torture people for as long as they wish and fabricate charges which can land people in prison without bail and even endanger their lives. To remain in prison without being further harassed they have to pay bribes.

Complaints about any of this treatment are unlikely to bring relief except on very rare occasions. If a public-spirited journalist or a human rights group writes about these matters they may also be targeted by physical attacks, including assassination, or be subjected to investigations.

There seems to be no political will to deal with the damage that has been done to Sri Lanka’s criminal justice system in the last few decades, particularly since July 1983. The preoccupation of the state is to hush up all complaints and to punish complainants so as to be able to deny human rights abuses happening in the country and the state’s inability to deal with such abuses effectively.

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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)