AHRC-OL-013-2006
May 15, 2006
Open letter to the Attorney General
The Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General’s Department
Colombo 12
Sri Lanka
Fax: +94 11 2 436 421
Dear Mr. Kamalasabesan,
Re: The case of Lalith Rajapakse — HC259/2003 (this High Court case is related to SCFR267/2002)
This case came up before the High Court of Negombo on May 4, 2006 for further cross examination of the victim/complainant. At this stage it was informed by the court that the High Court judge was being transferred and that the case was postponed to June 21 when a new High Court judge will be in court.
In all likelihood this means that the hearing of evidence will start all over again from whatever date the case is refixed for trial in the future. During the last two years from the time the case was taken up for trial, evidence in chief has been conducted on several days when the High Court devoted times between 15 to 45 minutes on different dates, altogether about two hours during this entire period. Now, once the case is taken up anew, how long the case will take is not possible to predict.
You will be aware that on the same facts of this case a fundamental rights application was filed which bears number SCFR267/2202. When this case was called before the Supreme Court on the June 27, 2005 the court made order to postpone the hearing of this case until the final judgement is made in the High Court case. The petitioner (victim/complainant) was asked to file a motion after the end of the High Court case in order to recall the case before the Supreme Court.
You will also be aware that there is a communication before the Human Rights Committee in this case bearing number 1250/2004. In this case on March 8, 2005 the Human Rights Committee held that “the Committee finds that the delay in the disposal of the Supreme Court case and the criminal case amounts to an unreasonable prolonged delay within the meaning of Article 5, paragraph 2(b), of the Optional Protocol”
We may also draw your attention to the fact that the United Nations Rapporteur Against Torture has intervened in this case on May 16, 2002.
Now, with this new development as mentioned above, the case is likely to be further delayed. We urge you to take the necessary steps to have this case heard on a day-to-day basis from the beginning to the end, instead of being postponed from one day to the next.
We also draw your attention to the final report of the Committee appointed to recommend amendments to the practice and the procedure in investigations and courts where, under paragraph 21.0 we find the following recommendations:
Day-to-day trail:
The breakdown in the continuity of trials is observed to be a key factor warranting urgent attention in the context of eradicating procedural delays existent in the Court structure. In this regard the Committee recommends that cases before the High Courts be heard on a day-to-day basis, so as to maintain the continuity of the trial. Further it is proposed that the Attorney General be empowered to reserve a right to request a Magistrate to take up specific trials and NSIs in the Magistrate’s court without delay.
Until such recommendations are made into law we request that the Attorney General’s Department take appropriate action to have the case heard on a day-to-day basis and thus bring this matter to an end.
It has been brought to your notice constantly that the petitioner had to leave his house in Kandana for fear of reprisals and has now been living for many years far away, with only the assistance of human rights groups for his subsistence and protection. He is unable to move about and to attend to any regular job for fear, as the alleged perpetrators have threatened to harm him. The only way he could relieve himself of this is by finishing his evidence in the High Court. Furthermore, one of the most important witnesses in this case is his grandfather, Elaris, who is over 75 years of age now and who fears death or loss of memory due to age. We urge you to take these matters into consideration in taking steps to expedite this case.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director
cc: UN Rapporteur Against Torture
Secretary CAT Committee
