CASE N° SRI/12 - JAYALATH JAYAWARDENA - SRI LANKA

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 166th session (Amman, 6 May 2000)

The Inter-Parliamentary Council,

Having before it the case of Dr. Jayalath Jayawardena, a member of the Sri Lankan Parliament, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the “Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians”,

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/166/16(c)-R.1), which contains a detailed outline of the case,

Taking account of the observations made by the Deputy Speaker of the Parliament of Sri Lanka at the hearing held on the occasion of the 103rd Conference of the Inter-Parliamentary Union (April/May 2000),

Considering that Dr. Jayalath Jayawardena, an incumbent opposition member of the Parliament of Sri Lanka and former medical officer, is accused under Section 5, paragraphs 1 and 2, of the Public Property Act of criminal misappropriation and cheating with respect to public property for having, from 1990 to 1993, drawn a salary from the State without performing his duties: instead of working at the General Hospital in Colombo as bound by his contract, he medically attended to two former Presidents of the Republic; two indictments, relating to two different periods (1/01/1991-31/10/1991 and 1/11/1992-31/10/1993) were filed against him and two cases, namely case N° 8076/96 and case N° 8075/96, are currently pending before Colombo High Court,

Considering that the sources noted the following irregularities in connection with the investigation: (a) investigations were instituted on the basis of an undated and unsigned petition, (b) a penal case instead of a civil case was brought against Dr. Jayawardena, (c) defence evidence was not examined, (d) alleged incidents of harassment of defence witnesses were not examined, (e) two indictments were filed with respect to the same offence, and (f) the fact that Dr. Jayawardena was issued a clean slate upon his resignation from public service was not taken into consideration; noting that the Attorney General refuted these arguments as unfounded,

Considering that Dr. Jayawardena's trial started in May 1997 and that, according to the Attorney General's letter of 28 December 1999, 14 witnesses have been heard so far; that the trial has been adjourned on many occasions at the request of the prosecution for such reasons as absence of the prosecutor owing to his being required to assist another prosecutor in the conduct of a difficult case (March 1999), granting by the judge of the prosecutor's plea for further time (May 1999), persistent torrential rains preventing the prosecutor from coming to court (October 1999), mistaken summoning of prosecution witnesses (January 2000), absence of a prosecution witness, a police officer, owing to his having been sent abroad (February 2000) and the illness of a prosecution witness replacing another witness (April 2000),

Noting in this connection, that the witness who is to be replaced is Mr. Viyanathan, Sub-Inspector of the Criminal Investigation Department who, according to affidavits, attempted to intimidate defence witnesses; according to the Attorney General's letter of 27 April 2000, he was nominated for an international assignment in East Timor in recognition of his ability and his command of English or, as stated in a report of 3 May regarding the trial hearing of 10 February at which the prosecutor announced his absence, was sent abroad on a scholarship by the Ministry of Defence,

Considering further that the sources fear that Dr. Jayawardena is prosecuted for political reasons and that the authorities are now seeking to accuse Dr. Jayawardena under the Prevention of Terrorism Act, and noting in this respect the following: in May/June 1998, Dr. Jayawardena, having obtained the necessary authorisation, went to the Wanni District, a restricted area, to meet people in a refugee camp; the Red Cross driver who took him there was subsequently arrested and detained for over seven months; he declared that police had attempted to extract a statement from him that Dr. Jayawardena had met LTTE (Liberation Tigers of Tamal Eelam) officials; the Supreme Court, in a ruling of 4 March 1999 on the driver's application (N° 361/98), stating inter alia that “it is likely that the Petitioner had been arrested for extraneous reasons in the hope that something might turn up which would incriminate Dr. Jayawardena”, granted the driver's declaration and ruled that he had been arbitrarily detained, awarding him compensation; in his letter of 28 December 1999, the Attorney General observed that, apart from the speculative observation by the Supreme Court, “there was no allegation that the relevant police officers had forced the driver to deviate from the truth in any way”,

Considering that the President of the Republic accused Dr. Jayawardena publicly on television on 3 January 2000 of having had discussions with the Liberation Tigers of Tamal Eelam (LTTE) and served as the link between his party, the opposition United National Party, and the LTTE and that she, in addition to Government officials, repeated this statement later on without furnishing any proof; in this connection the Attorney General's Office stated, on 27 April 2000, that “an accusation made in public about a political rival ought to be placed in correct perspective and not taken out of context to support a wholly unsubstantiated theory”,

Considering that Dr. Jayawardena has since received death threats and fears for his life, particularly since two days after the President's statement on television, Mr. Kumar Ponnambalam, the leader of the All Ceylon Tamil Congress, was killed by an unknown gunman in Colombo,

Bearing in mind that Sri Lanka is a party to the International Covenant on Civil and Political Rights, which guarantees the right to security, the right to be tried without undue delay, the right to fair trial and the right to privacy,

1. Thanks the Speaker, the Deputy Speaker and the Attorney General for the cooperation they extend to the Committee;
2. Expresses deep concern at the fact that the trials against Dr. Jayawardena, which have now been pending for almost three years, have been frequently postponed, mainly at the request of the prosecution, on seemingly implausible grounds;
3. Notes that the police officer with respect to whom affidavits of defence witnesses exist, attesting that he attempted to intimidate them, was sent abroad and will therefore not be able to testify in court; would appreciate clarification as to how the witness named in his place will be able to answer any question from the court or the defence about any such intimidation;
4. Is alarmed at the fact that Dr. Jayawardena has been publicly accused by the highest State officials, without any proof, of such grave conduct as entering into prohibited contact with the LTTE, an accusation which in the present circumstances of Sri Lanka is tantamount to singling him out as a target, and notes with concern that Dr. Jayawardena says he has received death threats;
5. Draws attention, in connection with the aforesaid accusation, to the Supreme Court ruling on application N° 361/98 from which it transpires that officers under State authority attempted to extract a false testimony from the driver that Dr. Jayawardena had met LTTE members, which testimony would have made Dr. Jayawardena liable to criminal prosecution under the Anti-Terrorism Act;
6. Fears that these circumstances, together with the duration of the trial under way against him together and the conduct of the prosecution, lends credence to the allegation that Dr. Jayawardena's prosecution may be based on other than legal considerations;
7. Wishes to ascertain whether investigations have been instituted into the death threats that Dr. Jayawardena complains of having received, and the outcome, if any; and notes with satisfaction the assurance given by the Deputy Speaker that Dr. Jayawardena will be afforded the protection measures he requests;
8. Recalls that, under the International Covenant on Civil and Political Rights, in the determination of a criminal charge everyone has the right to be tried without undue delay, and urges the authorities to ensure that Dr. Jayawardena's right thereunder is respected; also recalls that, in accordance with that Covenant, the State is under an obligation to protect persons under its jurisdiction against the intentional sullying of their honour and reputation by unsubstantiated assertions;
9. Requests the Secretary General to ensure, so far as possible, the presence of a trial observer in the future proceedings against Dr. Jayawardena;
10. Also requests the Secretary General to communicate this decision to the Speaker of Parliament and the Attorney General, inviting them to submit their observations thereon;
11. Requests the Committee on the Human Rights of Parliamentarians to continue examining this case and report to it at its next session (October 2000).

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