SRI LANKA: News briefing on the breakdown of law in Sri Lanka 

Dear friends,

We wish to share with you the following statement from the Sri Lanka Campaign.

Asian Human Rights Commission
Hong Kong

September 13, 2010

A Statement from the Sri Lanka Campaign forwarded by the Asian Human Rights Commission

SRI LANKA: News briefing on the breakdown of law in Sri Lanka

(This is a communiqué from the Sri Lanka Campaign forwarded by the Asian Human Rights Commission)

Dear Friends;

We must seriously contemplate the reality of life for Sri Lankans after the 18th Amendment, and in particular, the state of the Sri Lankan legal and constitutional system.

But facing reality head-on will help us refine and design strategies for effective interventions. So we have drawn the attached summary report from a range of well-informed sources.

We would really welcome your frank critique of this document, which we then intend to refine and use widely as a key lobby tool. Amongst its uses, we will:

1. Send this report to the UNSG’s Advisory Panel and ask them to take the GoSL to task on the clear failings identified in the report. We will do the same for key Sri Lanka donor governments and other governments that are supportive of the GoSL, especially those that pride themselves on being democracies.

2. Ask prominent lawyers inside and outside Sri Lanka to support the lawyers within the country who continue to represent and advocate on behalf of those targeted by the GoSL or its proxies.

3. Raise these issues with those Sri Lankan professionals who have either stayed silent about the war or repeatedly given the Rajapaksa regime the benefit of the doubt, to find out where they stand on this latest deterioration.

We would welcome your comments, suggestions, additions and then – and this is most crucial – your support for any of these steps and indeed, any other ideas you may have.

For example, you may wish to consider sending in your views on our analysis — ideally, deepening it with other examples — to the UN panel via one of its members or via the secretariat, and also any contacts you may have who are close to the governments that support the GoSL.

Whatever you can do to get this report to any friendly contacts you may have in key countries (India, Japan, USA, Brazil, South Africa, Malaysia, Canada, Australia, Indonesia etc) will have great value. And I hope it goes without saying that we would also like this document to be circulated widely within Sri Lanka, ideally in Sinhalese and Tamil as well as English. Any help with this would be much appreciated.
One thing we have heard repeatedly from our contacts is that whilst they get some independent input from and about Sri Lanka, this often tends to be analysis/commentary rather than advocacy: they say they don’t hear what concerned moderates within and outside the country actually want them to do or that these requests aren’t realistic. Our suspicion is that this is at least partly an excuse. But perhaps we need to be even clearer about our recommendations and show how they are practical, in order to remove this excuse from the discussions.

We are fully aware that these are very sensitive times. But we are also sure that earlier collective self censorship and silence has helped create the conditions that we now find in Sri Lanka today. And for this downward trend to be interrupted, we need new approaches. How to address this dilemma is not for us to say, but we know it is imperative that we all try.

If you are concerned about communication that could be attributed, please take whatever route you feel most comfortable with. For example, if you want to communicate with us, we can provide a postal or Skype address or you might have a special email address you prefer to use.

Let me take this opportunity to send you all our very best wishes for the testing but crucial times ahead.

Edward Mortimer CMG
Chair, Sri Lanka Campaign for Peace & Justice

September 2010

The Breakdown of the Rule of Law in Sri Lanka: An Overview


This review analyzes the state and the underlying causes of the current breakdown of the rule of law in Sri Lanka. The information herein is drawn primarily (but not exclusively) from three sources: Basil Fernando’s recently published book entitled Sri Lanka: Impunity, Criminal Justice & Human Rights (Hong Kong: Asian Human Rights Commission, 2010); the International Bar Association Human Rights Institute’s May 2009 report entitled Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka (hereinafter referred to as ‘IBAHRI’); and Kishali Pinto-Jayawardena’s The Rule of Law in Decline in Sri Lanka – Study on the Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka, a 2009 study commissioned by the Rehabilitation and Research Centre for Torture Victims (hereinafter ‘Pinto-Jayawardena’). The latter probably provides the most detailed analysis of the causes behind the breakdown of the rule of law in Sri Lanka (with a focus on addressing and preventing torture), while the former provides a conceptual and critical analysis of overarching themes that is extremely useful for understanding the situation in Sri Lanka.

Facts and figures were also drawn from a wealth of other reports and analyses published by other
institutions such as, inter alia, Amnesty International, Human Rights Watch, Reporters Without Borders, the United Nations High Commissioner for Refugees, and the United States Department of State.

In his book, Basil Fernando describes the current situation in Sri Lanka as one of “abysmal lawlessness.” Use of the word “abysmal” is explained as follows:

Lawlessness of this sort differs from simple illegality or disregard for law, which to differing degrees can happen anywhere. Lawlessness is abysmal when law ceases to be a reference. What would normally be crime ceases to be thought of as crime and lawlessness becomes routine.

Under circumstances of abysmal lawlessness, according to Fernando, the concept of legal redress – which is vital to the proper functioning of any legal system – has in fact been completely decoupled from whatever may be called law. In Sri Lanka, the primary cause of this decoupling has been the fundamental failure of the institutions ostensibly designed to implement and enforce legal redress.

Fernando characterizes the failure of Sri Lanka’s human rights justice and accountability apparatus by drawing an analogy to art:

Leo Tolstoy once wrote that the art of his time in Europe was counterfeit. In counterfeit art, the artist believes himself to be creating a work of art but is in fact only creating impressions of art. These impressions are derived from an understanding of some external qualities of art, which the artist tries to recreate. The work produced in this manner appears to have the external characteristics of genuine art. By imitation, artwork was mass-produced to suit the appetites of people willing to pay for it.

Similarly, Sri Lanka’s justice and accountability institutions have been eroded to the point that they have become dysfunctional sham institutions which are little more than hollow impressions that merely approximate some of the external characteristics of genuine functional institutions. Sri Lanka does not lack for a constitution, a court system, and other formal mechanisms for legal redress; however, none of these institutions have any more depth or substance to them than a Hollywood film set.

The numerous Commissions of Inquiry that have been appointed over the past several decades to address human rights concerns in Sri Lanka illustrate this phenomenon perfectly. Outwardly, they are designed to resemble other similar institutions around the world that undertake credible investigations and produce meaningful findings, which are then used by the government of the day to achieve tangible results.

However, as incarnated in Sri Lanka they currently serve little more real purpose than to either relieve domestic pressure or to discredit a previous government. Governments frequently are so brazen as to tailor a particular Commission’s mandate to specifically restrict its investigations to a time period coinciding with a particular predecessor regime. Evidence is also frequently manipulated, such as in one instance where the government influenced many victims’ testimony by making compensation available only where the victims claimed the perpetrator was a non-state actor; when these victims later testified in court that the perpetrators were actually state actors, their accounts were disbelieved on the basis of the prior conflicting statement. Recommendations are usually ignored and preliminary findings of responsibility are rarely followed through with judicial proceedings. Reports are frequently released to the public only after long delays, or in certain cases not at all.

Institutional limitations also abound. The pre-war Commissions of Inquiry Act was envisioned more to enable investigations into individual actions of public officials rather than large-scale systemic human rights violations. There are no built-in safeguards to protect the safety of victims and witnesses. Commissioners can be removed at the unreviewable discretion of the president, and therefore lack independence.

In 2007, the Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights was established. In response to concerns over the problems associated with past Commissions, the president invited a panel of eleven international experts to supervise the Commission’s process and ensure its integrity.

By November 2007, the experts had had enough. Citing persistent interference by the Attorney General, lack of effective victim and witness protection, lack of transparency and timeliness in the proceedings, uncooperative state bodies, and lack of financial independence, they tendered their resignations en masse. Noting further that the recommendations contained in their interim reports had largely gone ignored, they concluded that there was “an absence of political and institutional will on the part of the Government to pursue with vigour the cases under review” — definitively putting to rest any lingering doubts as to the true nature of Sri Lankan Commissions of Inquiry.

The Attorney General’s response to the international experts’ criticism was to release a statement accusing the international experts of being involved in an international ‘sinister plot.’

In his book, Fernando identifies six themes which, in his opinion, lie at the heart of the current situation of abysmal lawlessness in Sri Lanka: the lost meaning of legality; the predominance of the security apparatus; the disappearance of truth through propaganda; the extraordinary concentration of power in the hands of the executive president (termed ‘the superman controller’); destroyed public institutions; and the zero status of citizens.

This review will borrow these six themes as a tool to organize the discussion, because they provide a useful analytical lens with which to gain perspective on the breakdown in the rule of law in Sri Lanka today. While other accounts of the present situation in Sri Lanka do not necessarily organize their discussion the same way, they all invoke these themes in some way or another.

The Lost Meaning of Legality

Fernando describes the law in Sri Lanka today as an “exercise in futility.” He traces this problem back to the 1978 Constitution, which, according to him, “destroyed constitutional law” by negating all checks and balances over the executive. This has slowly led to the irrelevance of the supreme law and, gradually, all other law. Public institutions have also accordingly lost all their power and value. As Fernando puts it:

When there is a loss of meaning in legality, terms such as ‘judge’, ‘lawyer’, ‘state counsel’ and ‘police officer’ are superficially used as in the past; however, their inner meanings are substantially changed. Those who bear such titles no longer have similar authority, power and responsibility as their counterparts had before, when law still had meaning as an organizing principle.

What Fernando means to say here is that while such individuals hold the same nominal office, the manner in which they discharge their official duties has changed. That is, they no longer carry out their duties in conformity with the rule of law. For instance, under standard criminal procedure there is normally an obligation to investigate all crimes. In Sri Lanka, however, such investigations are carried out selectively. This unofficial expansion of investigative discretion has in turn made possible the now-commonplace tactic of harassing an enemy or political opponent by causing completely bogus criminal inquiries to be launched. In this way, the criminal investigation process has been co-opted from a mode of maintaining law and order to a tool through which not only to withhold protection from citizens but also to actively intimidate and victimize them. For instance, when 133 well-known Sri Lankans signed a letter condemning death threats against a civil society activist, the Criminal Investigation Division carried out an investigation not of the death threats but of the propriety of the signatories’ actions.

The ineffectiveness of public institutions of law has allowed underground elements to take over the functions of ‘law enforcement.’ More and more actors, both private and institutional, turn to criminal elements to achieve their ends. This is reflected in the “government policy to abduct and kill… (Individuals) to be eliminated for political advantage. The method of killing is, like the collecting of debts, now cheaper, quicker and less risky than going through the courts.” (Fernando, 23) As this downward cycle continues and legal redress becomes more the exception than the rule, the meaning of legality becomes corrupted further and further.

The Predominance of the Security Apparatus

Beginning with the insurgencies in Sri Lanka in 1971, and continuing through the conflict with the Liberation Tigers of Tamil Eelam (LTTE), the country’s security apparatus has emerged as a very powerful actor — which status is not expected to diminish notwithstanding the declared end of the conflict. For instance, many of the ’emergency’ measures introduced during the course of the conflict have not been repealed, even though fighting officially ended more than a year ago.

The targets of the security apparatus are ordinary citizens. Trade unionists, journalists, members of civil society organizations, officials and activists in opposition political parties, and even citizens engaged in simple protest are all of special concern — but all aspects of Sri Lankan life have now come under its surveillance. It is particularly keen to exert control over the electoral process, and does so by targeting the grassroots activities of opposition parties and even of members of the ruling party where internal competition arises.

Legislative measures such as the Prevention of Terrorism Act (PTA) have given the security apparatus much of the power it now holds. However, it is important to note that the security apparatus is by no means constrained by the legal limits of its statutorily conferred authority and moves beyond even these broad powers without inhibition. With the loss of the meaning of legality there is nothing to prevent it from continuing to do so. Accordingly, extrajudicial disappearances and killings are commonplace. At the same time, there has been no investigation of complaints against the security apparatus in recent years, and a culture has arisen where any calls for accountability are denounced as anti-patriotic and akin to treason, sabotage, or aiding and abetting terrorism.

Meanwhile, to this day, over a year after the purported end of the conflict, 8-10,000 detainees still languish in detention camps accused of being members of the LTTE. However, they have not been formally charged, nor have they been allowed legal representation or access to any procedure to review the legality of their detention. Allegations of mistreatment also abound, but the International Committee of the Red Cross has not been allowed access to the detainees, in flagrant violation of international law.

The Disappearance of Truth through Propaganda

Years of conflict have exerted a calamitous effect on the propagation and dissemination of truth in Sri Lanka. Equal in strategic importance to the struggle for control over territory during the conflict was the struggle for control over information. The military and the LTTE both vied to cast their polarized propagandistic perspectives as the single version of the truth.

The state has learned to excel at creating and controlling a single, official version of the truth. Society, for its part, has largely accepted the state’s self-anointed role as arbiter of truth and falsehood. As Fernando observes, “Those who run the media also usually comply with demands to reproduce and disseminate government propaganda. Those who do not comply are threatened.”

IBAHRI notes that the media has reached this point, in part, through years of intimidation and harassment. Journalistic voices critical of the government’s security measures are routinely named by the Ministry of Defence as ‘Tiger sympathisers’, ‘LTTE supporters’ or ‘terrorists’. Frequently, this is a precursor to a threat or physical attack against the journalist or media outlet. At least 14 media workers have been murdered since the beginning of 2006, with many others receiving death threats, being physically assaulted, having their offices burned, and/or being forced to flee the country. The state has also proven adept at using institutional channels to subvert press freedom.

For instance, in August 2009, J.S. Tissainayagam, a journalist who had written critically of the government’s military campaign, was sentenced to 20 years’ hard labour in what was the first conviction of a journalist for his writings under the PTA. So dismal is the situation, in fact, that Reporters Without Borders ranked Sri Lanka 162 of 175 countries in its 2009 Press Freedom Index.

The legal profession has been similarly conditioned through years of intimidation. On 28 January 2009, Amitha Arayatne, who had acted in several prominent human rights cases, received death threats from police officers. Two days later, his house was burned. Such incidents have been effective at reducing the number of lawyers willing to take on human rights cases. In March 2009, for instance, the lawyer representing Sunil Shantha, who was accusing the police of torture, suddenly withdrew from the case on account of threats from police.

As a result of these dynamics, there is a general level of societal disinterest in truth itself. When the truth is so cynically manipulated, Fernando explains, “People cease expecting to know the truth of anything.” As a result, government spokespeople automatically deny any allegations of human rights violations, knowing that no one will come forward to speak what they know, either out of fear or a sense of sheer futility.

Many observers cite the dwindling critical voices in the media, the legal profession, and Sri Lankan civil society in general as a key factor in the degeneration of the rule of law in Sri Lanka.

The Concentration of Power in the Hands of the President

Fernando traces the current breakdown of the rule of law in Sri Lanka today in part to the high concentration of power conferred upon the executive president under the 1978 Constitution. Under that document, the president gained absolute immunity from lawsuits of any kind, and all the powers of cabinet, including control over the civil service, were consolidated in the president’s hands. Moreover, the prime minister could be appointed or dismissed at will, and parliament dissolved a year after its election.

According to Fernando, the underlying principle of such a heavy concentration of power in the hands of the presidency is rooted in the belief that such a system is the only effective way to govern the country. However, with all the checks and balances on executive presidential power removed, this system has also exposed the office of president to arbitrariness and abuses of power. Further, the concentration in the executive presidency of responsibilities far greater than one person can possibly manage effectively has led to poor oversight and dysfunction in public institutions, exacerbating the breakdown in the rule of law.

To partially address this problem, Parliament in 2001 passed the 17th Amendment to the Constitution, creating a Constitutional Council with the power to recommend or approve the appointment of a number of senior positions in the public service, including the Attorney General, the Inspector General of Police, and the Chief Justice and other justices of the Court of Appeal and Supreme Court. This was intended to restore a measure of independence to institutions of governance, as the appointment process had by then become extensively politicized, with the executive using its powers of appointments to name party supporters to top posts. However, the CC has been in abeyance since 2005 when the term of the first CC lapsed and the President, in defiance of his constitutional obligations, refused to appoint the successors duly selected by the various parties constitutionally empowered to make the nominations. Further, the President’s failure to do so cannot be directly challenged in court due to his immunity from suit under Article 35 of the Constitution. Nevertheless, litigation has been launched alleging that the non-implementation of the 17th Amendment is a violation of the constitutional right to equality before the law, and it is as yet unresolved whether the Chief Justice has the power to make the appointments if the President refuses to do so himself. Meanwhile, according to the IBAHRI, “The non-implementation of the 17th Amendment represents one of the most critical unresolved rule of law issues in the country.”1

A culmination of this concentration of unchecked power in the hands of one person is plainly evident in the current initiative of President Rajapaksa to have Parliament adopt an 18th Amendment to remove the current constitutional limitations on the number of terms a president – i.e., he can serve.

Destroyed Public Institutions

Fernando argues that through the combined effect of the above four elements, Sri Lanka’s public institutions for the administration of justice have been effectively destroyed. This topic has been the subject of much of the work of the Asian Human Rights Commission (AHRC) and the Asian Legal Resource Centre (ALRC). In his book, Fernando reviews this work in order to catalogue the descent into disgrace of the police, the Attorney General’s department, and the judiciary. In each case, the institution has gradually degenerated to the point where today it appears to serve no other purpose than to provide cover for abuses of power and rights violations perpetrated by the state. As a result of this situation, “there is nothing sacrosanct or predetermined about any institutional practices now, and the citizen who goes before public institutions knows not what to expect.” Pinto-Jayawardena identifies two factors in particular that lie at the root of Sri Lanka’s failed public institutions. These are a lack of independence from political interference from the executive, and a lack of public resources.

Lack of Independence

The key to any successfully functioning judiciary is judicial independence. However, the judiciary in Sri Lanka cannot be said to enjoy judicial independence. Institutionally, any judge of the Court of Appeal or Supreme Court can be removed by an order of the President supported by a simple majority in Parliament.

The executive also interferes habitually in the affairs of the judiciary. For instance, the IBAHRI notes that in one speech, the President issued thinly-veiled threats of public lynchings and impeachment to the judges of the Supreme Court.

1 The situation has not improved since the release of the IBAHRI report in 2009. In fact, the Sri Lankan government recently indicated it would move to abolish the Constitutional Council altogether in a constitutional amendment, and devolve all its powers to the executive presidency.

While there have always been tensions between the executive and the judiciary, many observers point to the 1999 appointment of then-Attorney General Sarath N. Silva – who had close ties to the President – to the office of Chief Justice as a watershed moment in the degeneration of the judiciary, once a credible defender of fundamental rights and an important check on executive power, into its current weakened and docile state. Silva’s appointment, which came in the midst of a flurry of executive backlash against a Supreme Court which it saw as unduly intrusive in government affairs, was accompanied almost immediately by a perceptible shift in the Court’s attitude towards fundamental rights petitions. According to the IBAHRI, Chief Justice Silva had a domineering personality and wielded enormous influence over his colleagues, which he used to maximum effect by assigning the most politically sensitive cases to himself and the most junior judges. Notably, a petition against his appointment to the Supreme Court was dismissed by a five-judge bench constituted (by his own order) of himself and the four most junior judges. On two other occasions, Parliament attempted to effect his removal with impeachment motions, only to be thwarted by the President’s summary dissolution of the legislature.

The lack of judicial independence for the judiciary has led to its politicization, and is just one example of the erosion of public institutions occurring in Sri Lanka. It is not only the judiciary, however, that suffers from a lack of independence. All institutions which are ostensibly set up to act as checks upon state action lack proper insulation from political interference. The section above has already described how the Constitutional Council, designed to inject a measure of impartiality in the heavily politicized appointments process, has been deliberately (and unconstitutionally) thwarted and undermined by the executive. Further, the various elements of the state security apparatus are not properly insulated from the various institutions that are ostensibly designed to investigate and address complaints against them. For instance, the unit responsible for investigating allegations of torture against police is composed of police officers – who are often transferred in and out of the unit – effectively assigned to investigate their own colleagues. Under such circumstances it is impossible to expect fully independent and impartial investigations. The result, unsurprisingly, has been a near-complete failure to investigate and prosecute allegations of torture against police.

Lack of Resources

The lack of resources is a major problem that severely compromises the capacity of public institutions to fulfill their roles. Due to lack of resources public institutions are understaffed and underequipped, and their personnel lack the proper education and training for their posts. This impairs the ability of these personnel to perform the functions required of them, and it only adds to the Sisyphean challenge of resurrecting these institutions from their already dysfunctional state.

The Zero Status of Citizens 

As the country’s public institutions have fallen to zero, so has the status of its citizens. Where there are no effective public institutions there can be no individual rights. The rights that citizens enjoy under the statute books have no actual relevance, because there is no effective mechanism to guarantee and protect them. Thus, insofar as the nation’s public institutions have vanished, so has any conception of Sri Lankans’ individual rights.

Perhaps the starkest example of this zero status can be seen in the detention camps discussed above where, at the height of the situation, hundreds of thousands of internally displaced persons were housed and detained. These camps were operated without any lawful authority under either domestic or international law, and in fact contravened a number of fundamental rules of international human rights and humanitarian law. This situation was merely a high-profile manifestation of what is more generally the current reality in Sri Lanka — that its citizens are subject not to the rule of law but to the naked political power of the ruling government.

Although the detention camps provided a dramatic illustration, it is important to reiterate that it is not just internally displaced persons in Sri Lanka that have zero status, but all citizens right up to the members of the privileged elite. For these individuals, even their relative wealth and power cannot afford them access to public institutions that have been destroyed. The rule of law has vanished with respect to all Sri Lankans. Fernando chronicles how from time to time members of the ruling class are surprised to learn that their position in the hierarchy does not make them invulnerable to (legally) arbitrary treatment. Often – as in the case of the prosecution for sedition of General Fonseka (who has not, on the other hand, been tried for what were almost certainly massive violations of the laws of war by the Sri Lankan military during the final stages of the war that he oversaw) — these individuals were themselves active in the repressive state structure before the system turned against them. Of course, they are perhaps on the opposite end of the spectrum from internally displaced persons with respect to the actual magnitude of misfortunes visited upon them and. However, this does not make their treatment any less arbitrary or lawless.


In broad strokes, the collapse of the rule of law in Sri Lanka can be reduced to the following. The effectiveness and legitimacy of Sri Lanka’s public institutions has been destroyed through years of undue political interference from the executive and through involvement in the perpetration of repression by some of those institutions. There is a lack of institutional independence as well as a lack of resources. Mechanisms that could partially address deficiencies in institutional independence, such as the Constitutional Council or the courts, have been systematically undermined and sabotaged by the executive. Further, perceived security threats give the government an excuse to maintain much of the power it now holds.

As a result of this situation, Sri Lankans’ expectations of their public institutions have fallen to the point that the very notion of legality has been lost; that is, there is no longer an expectation on the part of Sri Lankans that their public institutions will operate according to the rule of law. At the same time, the concept of individual rights itself has also been lost, and Sri Lankans’ expectations that they will have anything above and beyond zero status has also gradually been eroded. When this mentality pervades not just the general public but also those who hold office in public institutions, the rule of law is extensively compromised. Meanwhile, because of the disappearance of truth as a public enterprise — affected by years of government propaganda, manipulation and outright intimidation of the media — there is little organized pressure on the government to address the situation, and what little resistance is offered is crushed.

All this is to say that the problem is broadly based: there are problems in how public institutions are set up, there are problems in how public institutions operate in practice, there are problems in how public institutions are supported financially, and the problem even runs as deep as the very mentality of those who staff these institutions as well as Sri Lankans in general.

Further Reading

As a final note, it has been impossible here to exhaustively catalogue specific details of all the factors behind the collapse of the rule of law in Sri Lanka. To this end, a brief review of the
executive summary and recommendations contained in both the 2009 IBAHRI report as well as the 2009 report of Kishali Pinto-Jayawardena would be very useful reading for anyone wishing to gain some quick insight into the current situation on the rule of law in Sri Lanka and the kinds of problems that need to be addressed. Also recommended is Basil Fernando’s online article, “A three- part study on the crisis in institutions for administration of justice in Sri Lanka and its consequences for the realisation of human rights in Asia”, which summarizes the analysis in a trilogy of books — the above-mentioned Sri Lanka: Impunity, Criminal Justice & Human Rights as well as two preceding works published in 2009, The Phantom Limb and Recovering the Authority of Public Institutions; this article was prepared for in June 2010.

For further information on this campaign please see:

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984. The above statement has only been forwarded by the AHRC.

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Document Type : Forwarded Statement
Document ID : AHRC-FST-073-2010
Countries : Sri Lanka,