SOUTH ASIA PROGRAMME ACTIVITIES

LITIGATION AND ADVICE
TRAINING: BUILDING CAPACITY
LEGAL PUBLICATIONS
OTHER PROJECTS

LITIGATION AND ADVICE

Sri Lanka Found Guilty of Gross Violations in Disappearance Case

A case brought by a Sri Lankan father under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) following the torture and disappearance of his son, has resulted in a finding of serious rights violations by the UN Human Rights Committee, 31 July 2003. In 1990, S Jegatheeswara Sarma�s son, J Thevaraja Sarma, was seized by the military on suspicion of being a member of the Tamil Tigers and was beaten and tortured. Although he saw his son briefly again a year later, he had no further contact with him. His repeated requests to the authorities were met with blank denials that his son had ever been taken into custody. In 2000 Mr Sarma, assisted by former INTERIGHTS visiting lawyer Mr V S Ganesalingam (Legal Director at Home for Human Rights since 1991) and INTERIGHTS legal staff, brought a case before the Human Rights Committee (Communication No. 950/2000). Prior to the full hearing, the state sought to argue that the case was inadmissible on the grounds that (a) the ICCPR Optional Protocol only came into force in Sri Lanka in 1991 after the alleged disappearance took place and (b) Mr Sarma had failed to exhaust domestic remedies.

However, the Committee declared the case admissible on the grounds that (a) the alleged violations may have occurred or continued after the Protocol came into force and (b) the fact that the Presidential Commission of Inquiry into Disappearances had failed to determine the case after seven years meant that domestic remedies had been effectively exhausted. This second aspect is also of wider significance since this is the first time that the Committee has effectively recognised that the procedures before quasi-judicial bodies must also be exhausted before bringing a UN petition. Going on to examine the merits, the Committee found the state to be responsible for J Thevaraja Sarma�s disappearance and to have violated his rights under Article 7 not to be subjected to torture or ill treatment and under Article 9 to liberty and security. Noting the anguish and stress suffered by Mr Sarma and his family it also found a violation of Article 7 in respect of them. The Committee called on Sri Lanka to carry out an effective and through investigation into the victim�s disappearance and ultimate fate, to bring to justice the perpetrators and to provide adequate compensation to his family. INTERIGHTS will be working with Mr Sarma and his lawyers to ensure that the Sri Lankan government complies with the Committee�s recommendations.

Read the full text of the Committee�s decision.

Major Victory for Sri Lankan Families Claiming Compensation Following Deaths in Custody

In a significant breakthrough for bereaved families, the Sri Lankan Supreme Court held by a majority of two to one on 10 December 2002 that a wife whose husband died in police custody could bring a claim for substantial compensation from the state. By rejecting the argument that the right to sue under Article 126 of the Constitution for a violation of a fundamental right could not extend beyond the deceased victim, the decision in Kotabadu Durage Sriyani Silva v Chanaka Iddamalgoda & Ors (SC Appln. No. 471/2000) recognised that effective rights require effective remedies. Otherwise, as the Court stated, 'it would result in a preposterous situation in which a person who is tortured and survives could vindicate his rights in proceedings, but if the torture is so intensive that it results in death, the right cannot be vindicated.' After hearing evidence that the post mortem found the victim had sustained 20 injuries and had died from acute renal failure following assaults by up to 10 police officers, the Court granted leave for the claim to proceed. Kotabadu Silva, represented by leading Sri Lankan human rights lawyer J.C. Weliamuna, claimed Rs. one million compensation from the state. A memorandum by INTERIGHTS on the position under international human rights law on the rights of victims' relatives to claim compensation was submitted on behalf of the petitioner.

The Sriyani Silva case was concluded on 8 August 2003 when the dependants of the deceased were paid Rs. 800,000 compensation  by the Supreme Court. The final judgment given by Justice Fernando was very significant in that it recognised the right to life under the Sri Lankan Constitution.

Read INTERIGHTS' Memoranda on the standing of family members to seek redress for the violation of human rights Part I and Part II, the lawyer for the petitioner's submission to the Court, and the Supreme Court judgment.

Sri Lankan Court of Appeal Rejects International Human Rights Standards and Decides for Defendant in Rape Case

In June 2000 INTERIGHTS conducted comparative jurisprudence research on procedural protection available for a rape complainant when giving evidence, for the case of Kamal Addrachchi (Addarachchige Gunendra Kamal alias Kamal Addrachchi v State) before the Sri Lankan Court of Appeal. The Court decided in favour of the defendant.

The case raised several contentious issues in the context of rape and sexual assault. The reasoning behind the Court of Appeal�s judgment conflicted with accepted international human rights standards and comparative Commonwealth jurisprudence, as it advocated insufficient standards of protection for complainants in rape cases and further, applied untenable and outdated doctrines such as evidence of forceful resistance, corroboration of events, and implied consent.

INTERIGHTS was subsequently also involved in providing a memorandum on the relevant international and comparative case law to form part of written submissions on behalf of the complainant�s lawyers before the Supreme Court. However, the latter refused leave to appeal. (For the decision, dated 30 May 2002, see Inoka Gallage v Addararachchige Gunendra Kamal Alias Kamal Addrachchi, SC Leave to Appeal No. 30/2001.)

Read INTERIGHTS' Memorandum. 

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TRAINING: BUILDING CAPACITY

South Asia Judicial Colloquium Series � Enforcing Human Rights and Access to Justice

This series of judicial colloquia and exchanges focuses on the domestic implementation of human rights norms, access to justice, and the protection of economic, social and cultural rights for judges of the superior courts in South Asia.

The series is being facilitated by INTERIGHTS and the Commonwealth Human Rights Initiative (CHRI), each of which has long co-operated with the judges in the region, in collaboration with other organisations such as the Office of the High Commissioner of Human Rights (OHCHR).

First Regional South Asian Judicial Colloquium on Access to Justice

The first Regional South Asian Judicial Colloquium was held in New Delhi, India from 1-3 November 2002. It brought together over 30 senior judges from the superior courts of several SAARC countries (Bangladesh, India, Nepal, Pakistan and Sri Lanka), as well as judges and academics from other Commonwealth jurisdictions (Canada, South Africa, Zimbabwe).

The Colloquium was convened by the Honourable Chief Justice of India, Mr. Justice B.N. Kirpal, and facilitated by CHRI and INTERIGHTS, in collaboration with the OHCHR. It provided an opportunity for senior judges within South Asia to:

• share experiences and information regarding innovations and successes in furthering the realisation of rights and increasing access to justice as well as discuss the obstacles to judicial enforcement of human rights and means of overcoming these;

• explore practical steps taken by individual judges to ensure access to justice in particular cases;

• discuss the scope for developing a programme for judicial education on access to justice and human rights within the region, and within each country;

• and decide on directions and topics for taking forward a process of judicial dialogues, exchanges and education nationally and regionally.

Presentations were made, and papers delivered, on a number of subjects concerning access to justice, including the need for independence of the judiciary as a sine qua non for ensuring such access; existing obstacles, including delay and backlogs in the courts; the particular difficulties faced by women and minorities in obtaining judicial redress; poverty as a barrier to access and judicial innovations in providing access. Papers referred to the experience of courts within South Asia, and other Commonwealth countries on these issues.

Participating judges agreed to take forward a programme over the next two years of continuing to share information across their courts of 'best practices' in providing access to justice, to undertake studies on the extent of implementation of court judgments affecting the poor and disadvantaged, and to take steps to overcome barriers to access in their respective courts. They also undertook to hold further meetings at different levels of the court system to identify further means to address the challenges of addressing access to justice.

Maharashtra Judicial Exchange on Access to Justice

The first Judicial Exchange on Access to Justice took place in Mumbai, Maharashtra, from 14-16 November 2003. It was convened by judges of the Bombay High Court and facilitated by the CHRI and INTERIGHTS.

The Exchange was attended by around 50 judges and jurists and several Indian activists and academics and international experts. It focused on issues relating to access to justice in the context of poverty and marginalisation, and provided an opportunity for senior judges, primarily from within the state of Maharashtra, to reflect upon innovations and successes in the development of case law and practice on these issues within India and to address further challenges in ensuring effective access to justice.

With an overall focus on the role of the judge, participants:

• discussed the experiences of users of the courts; reviewed the use of innovations in judicial practice to facilitate effective protection of human rights, including through applying international and comparative human rights law in national courts;

• examined practical initiatives aimed at facilitating access and ensuring enforcement of judgments;

• and discussed the use of external sources of expertise by individual judges and courts.

Participants and speakers addressed the above in the context of issues which have been of particular recent concern, including the experience of courts users, in particular women, minorities, dalits and tribal communities and individuals; the judges' role in enforcing economic and social rights, particularly the right to housing; and securing the right to life and liberty, focusing in particular on how to address the chronic problem of inadequate and ineffective investigation and prosecution. Participants also examined the scope for courts and judges to benefit from the learning and experience of expert bodies and individuals from outside the judicial system, and finally, discussed ways and means to ensure more effective enforcement of judgments.

In addition the Exchange provided a forum for judges to discuss the scope of developing ongoing judicial education on human rights within Maharashtra.

Website

The website dedicated to the South Asia Judicial Colloquium Series on Access to Justice, which is hosted by the CHRI website, can be accessed at www.humanrightsinitiative.org/jc/default.htm.

This has been designed by CHRI and INTERIGHTS to facilitate the exchange of information among the judiciary through the colloquium process. It includes papers produced for and presented at both the New Delhi Colloquium and the Maharashtra Exchange, as well as related judgments and articles and links to other sites containing information on access to justice in South Asia.

Background to the Series

A ten-year cycle of international judicial colloquia was initiated by the then Chief Justice of India, Justice P.N. Bhagwati, in Bangalore in 1988. Following meetings in Abuja, Harare, Oxford, Johannesburg and Georgetown, the series concluded again in Bangalore in 1998. The 'Bangalore Principles', adopted by eminent jurists from across the globe attending the first Colloquium, came to influence the jurisprudence of a number of courts, and enabled judges to apply international norms in interpreting constitutional rights guarantees (see the series of publications, Developing Human Rights Jurisprudence: Domestic Application of International Human Rights Norms, Vols 1-8, INTERIGHTS/Commonwealth Secretariat).

At the final such colloquium, in Bangalore in 1998, a group of South Asian judges (from Bangladesh, India, Pakistan and Sri Lanka) floated the idea of holding a specifically South Asian colloquium process, enabling dialogue among judges and practitioners on issues of particular regional concern. Subsequently, a meeting was convened in Dhaka in 2000 by the then Chief Justice of Bangladesh and attended by the then Chief Justice of India and the Chief Justice of Nepal, which recommended holding a colloquium series focusing on issues of access to justice and economic, social and cultural rights in the context of the widespread incidence of poverty in the region. INTERIGHTS and CHRI were requested to facilitate the holding of this series.

The planning meeting also proposed holding an annual regional colloquium, together with a series of national judicial exchanges within several of the SAARC countries, and a longer-term programme of contributing to the development of judicial education in each country. An informal contact group of judges was formed, to guide the content and structure of the programme, and CHRI and INTERIGHTS were asked to facilitate its implementation.

Nepal National Lawyers' Workshops

The first of two Nepal national lawyers� workshops jointly organised by INTERIGHTS and INSEC (the Informal Sector Services Centre) was held in Kathmandu from 9-10 February 2002. The workshop, �Complaint Filing Procedures to the UN Human Rights Committee�, was attended by about 60 practising lawyers from Nepal as well as 20 resource persons including Nepali judges and lawyers and an international law expert.

Agenda            Participants� List           Workshop Report           Papers & Materials

The second focused on �Litigating Human Rights in a State of Emergency� and was held in Dhulikhel from 27-29 September 2002. Participants comprised 55 practising lawyers from the Supreme Court of Nepal and the District Court of Kathmandu and some 18 Appeal Courts across the country. Resource persons included Nepali judges and lawyers, practitioners and experts on regional and international human rights law from India and the UK, respectively.

Agenda            Participants� List            Workshop Report         Papers & Materials

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LEGAL PUBLICATIONS

INTERIGHTS Contributes to Major Report on Proposed Indian Criminal Justice Reforms

A major report by Amnesty International, commenting on recommendations for reforming India�s criminal justice system, was launched on 19 September 2003. The report, critically assessing the government-appointed Malimath Committee�s proposals published in April, drew significantly on comparative research prepared by INTERIGHTS and the pro-bono team at Allen & Overy. In so doing, Amnesty was able to demonstrate that many of the Malimath Committee�s recommendations were not only out of step with international human rights standards but procedures adopted in other jurisdictions. Proposals included lengthening periods of police remand, making confession evidence admissible, ending the right to silence and reversing the presumption of innocence by allowing the prosecution to lead bad character evidence. Amnesty concluded that if only some of these proposals were adopted they could lead to a serious weakening of safeguards both during the pre-trial and trial stages. In addition, the Committee�s recommendations sought to reduce the safeguards for women facing crimes of domestic violence.

Download Amnesty International's press release here and the full text of the report here.

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OTHER PROJECTS

CIMEL/INTERIGHTS Project on Strategies to Address 'Crimes of Honour'

Introduction

Fundamental human rights are now protected by a growing body of international human rights law. These rights include the right to life, personal liberty and security and the right to equality before the law. Such rights are also secured by the national constitutions of most countries. Nevertheless, they continue to be violated across the globe in the form of 'honour' killings or 'forced marriage.' The targets of these crimes are overwhelmingly women.

Of the many hundreds of individual �honour crimes� cases which take place, only a few cases reach the news. Several cases have catalysed a coalescence of national and international action in the past few years. In Pakistan, for instance, Samia Sarwar was gunned down in her lawyers� chambers, reportedly at the instigation of her parents, while seeking advice regarding a divorce. In Britain, Rukhsana Naz was killed by her mother and brother for insisting on marrying against their will. In Brazil, Sandra Gomide, a journalist, was murdered, allegedly by her ex-partner, for having decided to break off the relationship. In Jordan, dozens of women are retained in 'protective custody' in jail rather than being returned to homes where they fear they may be subjected to �honour� killings for their alleged 'immoral behaviour.'

In recent years, there has been an increase in attention to �crimes of honour� at international, regional and national levels. At the international level, �crimes of honour� have continued to be considered by various bodies of the United Nations including the General Assembly, the Commission on Human Rights and the Special Procedures. Of particular note is the work of the Special Rapportuers of the Commission on Human Rights, on extra-judicial, summary or arbitrary executions; on violence against women, its causes and consequences; and on the elimination of all forms of intolerance and of discrimination based on religion or belief; all of whom have continued to include consideration of 'crimes of honour� within their mandates, both in their general reports and in addenda reports, including country visits.

At the UK national level, �crimes of honour� have become more visible on the political agenda.  There has been significant press coverage of several criminal cases of �honour killings�, disappearances linked to �honour crimes� and forced marriage or exercising choice in marriage. Of particular concern was the published comment of Judge Neil Denison in the case of Abdullah Yonis (a man who was convicted of murdering his 16 year old daughter reportedly for reasons of �honour�) which stated �[t]his is, on any view, a tragic story arising out of irreconcilable cultural differences between traditional Kurdish values and the values of western society.� This comment caused concern among those seeking to address �crimes of honour� in the UK and prompted several critical articles to appear in the press. There have also been several initiatives by police in the UK to address �crimes of honour�, led by the Metropolitan Police Service (MPS).

The �Honour Crimes� Project is jointly co-ordinated by CIMEL (Centre of Islamic and Middle Eastern Laws) at the School of Oriental and African Studies, London University and INTERIGHTS. The Project is an action-oriented collaborative research project on Strategies to Address �Crimes of Honour� initiated in 1999 and co-directed by Dr. Lynn Welchman, Director, CIMEL, and Sara Hossain, former Legal Officer (South Asia) at INTERIGHTS and a barrister at the Supreme Court of Bangladesh.

Globally, the Project seeks to facilitate co-operation among activists, lawyers, academics and others and to develop and deepen understanding, explore theoretical frameworks and build upon diverse and multiple strategies, nationally, regionally and internationally, to combat impunity for those responsible for �honour� crimes and to challenge the climate of support for the practice amongst state institutions.

Activities

In its first year (July 2000 � June 2001), the Project undertook several activities to identify commonalties in incidence, practice and law that might contribute to developing such strategies within the framework of international human rights law. These activities included:

�        undertaking a 'mapping exercise' to identify the work done and currently being undertaken to address the issue of �honour� crimes globally. Initial research had indicated that until recently, many of those working at the national or regional level on this issue were unaware of work being carried out elsewhere, particularly in other regions. The 'mapping exercise' has resulted in a Directory available on this website and by hard copy via CIMEL on request;

�        preparing an Annotated Bibliography, containing over 100 entries in English, in Arabic and Portuguese which can also be viewed at the INTERIGHTS website (www.interights.org/about/Projects.asp) and at the following addresses: http://www1.umn.edu/humanrts/bibliog/honourintro.html or http://www.iwhc.org/uploads/HONORCRIMESBIBLIO.PDF;

�        compiling Statutory Provisions on Crimes of �Honour� in the Penal Codes of Arab states;

�        compiling extracts of international human rights documents on �honour� crimes, including �honour� killings and forced marriage;

�        submitting material on �honour� crimes across the world to relevant UN human rights mechanisms;

�        holding a Roundtable on Crimes of �Honour�, which was participated in by twenty key scholars, lawyers, journalists and human rights activists from Turkey, Jordan, Palestine, Israel, Pakistan and the UK, and publishing the summary proceedings of the Roundtable (see 'Roundtable on Strategies to Address 'Crimes of Honour': A Summary Report', 439-461 in 6 Yearbook of Islamic and Middle Eastern Law 1999-2000. The report can be accessed at this website under Project Meetings.)

Focusing specifically on the issue of forced marriage, the Project also:

�        Commissioned papers on the practice within the UK (�Forced Marriage: A Crime of Honour�, and �Respecting Choice in Marriage within Family and Community: A Cultural/Contextual Approach to Combating Forced Marriage�);

�        In collaboration with human rights groups in Bangladesh and Pakistan, contributed a joint submission to the British Government�s Home Office Working Group on Forced Marriage, recommending strategies to be undertaken to protect women and girls at risk of abduction and forced marriage from the UK to Bangladesh or Pakistan;

�        Convened a practitioners� seminar on 'Forced Marriage as an Abuse of Human Rights: Legal and Social Issues' in July 2000, to enable reflection on the scope and dimensions of the practice of forced marriage as an abuse of internationally recognised human rights, and to explore legal ad other strategies.

 In its second year (July 2001 � June 2002), the Project has continued to expand on its existing initiatives. Its activities included:

     �        Updating and expanding the �mapping exercise� over the year.

�        Maintaining and updating the Annotated Bibliography, including new entries and a substantial number of case summaries, which came out in August 2001. (For hosting websites please see above.)

�        Updating the compilation of extracts of international human rights documents on �honour� killings and forced marriage.

�        Preparing an article entitled �Crimes of �Honour�: Problematising a Project� by Dr. Lynn Welchman, at the request of Suad Joseph of the American University of Cairo and the University of California at Davis. The article is to be published in a forthcoming volume being edited by Suad Joseph under the title Women and Human Rights in Muslim Societies.

�        Commissioning a training film on forced marriage, �Love Snatched�, by film-maker Gita Sahgal, in order to facilitate the process of community level education and the raising of awareness on the issue of forced marriage. The film was screened at a cinema in London in May 2002 to academics, lawyers, teachers, activists, journalists and representatives from relevant agencies such as social services, the Foreign and Commonwealth Office and the police. It is to be translated possibly into Arabic and some South Asian languages (see Partner Projects).

�        Continuing work on the Handbook on Forced Marriage: Rights and Remedies in Bangladesh, India and Pakistan (forthcoming, 2004), a manual focussing on law, process and resources on the subject that is funded by the Foreign & Commonwealth Office.

�        Commissioning country studies on the issue of �honour crimes� from individuals/organisations in Bangladesh, Egypt, India, Israel/Palestine, Jordan, Lebanon, Palestine, Pakistan and Turkey (see Partner Projects).

�        Holding a three-day international meeting on �crimes of honour' in London in February 2002, which was attended by lawyers, scholars and activists from Bangladesh, Brazil, Egypt, India, Israel, Italy, Jordan, Lebanon, Morocco, Palestine, Pakistan, the UK and the USA (see Project Meetings).

�        In collaboration with Women Living Under Muslim Laws (WLUML), holding a launch of Dr Faustina Pereira�s The Fractured Scales: the Search for a Uniform Personal Code in Bangladesh (UPL/Stree, 2002) at SOAS in April 2002.

In its third phase (July 2002 � December 2003), the Project has continued to expand on existing initiatives and develop new areas. Activities have included:

�        Updating and expanding the �mapping exercise� over the year. An updated version of the Directory on Initiatives to Address �Crimes of Honour� was finalised in December 2002. Hardcopies of the Directory were printed and distributed and the electronic version, which is continuously updated, was made available through the Project website.

�        Maintaining and updating the Bibliography which, given the volume of material, has now been divided into two documents: an Annotated Bibliography and a collection of Case Summaries from jurisdictions throughout the world. Electronic copies of both documents are available through the Project website. Further to co-operation between the LSE Gender Institute�s project on �Sexual & Cultural Equality: Conflicts and Tensions�, additional case summaries from UK jurisdictions may be found in the Women and Cultural Diversity: Digest of Cases.

�        Completed the first edition of 'Selected International Human Rights Materials addressing 'Crimes of Honour'' an easily accessible collection of human rights materials from international and regional bodies relevant to those seeking to research and address �crimes of honour�, including �honour killings� and forced marriage.

�        Continuing work on the Handbook on Forced Marriage: Rights and Remedies in the UK, Bangladesh, India and Pakistan (forthcoming, 2004), a manual focussing on law, process and resources on the subject that is funded by the Foreign & Commonwealth Office.

�        Provided advocacy and interventions, including presentations of papers and participation in a number of conferences and workshops on �honour crimes� and forced marriage, convened by various agencies and institutions, including the UK Metropolitan Police Service and NGOs, including in Brazil, India, Spain and the UK. Summaries of several of these meetings are available under the Events section of the Project website.  

In addition to these activities, the Project also began work on the Project Book, a publication, which will serve as a resource for and within diverse groups and regions on the development of effective strategies to address �crimes of honour�. The book will be divided into two main sections. The thematic section of the book is intended to contextualise strategies to combat �crimes of honour� within the frameworks of international human rights laws and violence against women, as well as highlighting links to policy developments and representation issues. The thematic section will draw on issues such as international advocacy, community dialogue, value and meaning, multiculturalism and media representation. The second section will be presented in a case study format, drawing on the experiences of Project Partners in working to address �crimes of honour� in various countries.

Contacts

The Project is jointly co-ordinated by Dr. Lynn Welchman, Director of CIMEL, and Sara Hossain, former Legal Officer for South Asia at INTERIGHTS, and would welcome contact from interested lawyers, academics or activists working on the issue at hcp@interights.org or cimel@soas.ac.uk.

Website

For further information please see the Project website at www.soas.ac.uk/honourcrimes.

It includes the Project statement, an Annotated Bibliography, the 'Directory on Initiatives to Address 'Crimes of Honour'', a number of publications and papers produced by the Project as well as other resource materials and links to organisations working on the issue and is continuously being updated.

A new book produced by the Project, entitled Honour: Crimes, Paradigms and Violence against Women, will be published by Zed Press in 2005. Please click here for more details.

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