According to article 2 (3) of the ICCPR a State Party is to ensure that any person whose rights and freedoms are violated shall have an effective remedy and that such a person shall have his or her right determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided by the legal system of the state, and that the State is to develop the possibilities of judicial remedy. It further stipulates that the State Party should ensure that competent authorities shall enforce such remedies when granted.

The Asian Legal Resource Centre (ALRC) observes that Sri Lanka, as a State Party, has prevented the possibilities of having an adequate remedy for several violations of rights either due to the absence of laws for this purpose or by procedural defects through which the basic violations are left without an adequate and effective remedy.

Basic to the protection of the right to life is the prevention of murder and effective prosecution of murder. There are large numbers of cases in Sri Lanka where murders have taken place and the victims and their families have not been provided with adequate remedy by way of proper investigations or by successful prosecutions. The success rate of prosecutions in Sri Lanka in serious criminal cases is only four percent—which only refers to the cases that actually reach the courts after investigations. However, many cases do not even get to court due to failures in the investigations. Such failures refer not only to cases perceived as politically sensitive or complex but even ordinary cases of murder allegedly committed by civilians or at the police stations.

The case of the killing of Police Inspector Douglas Nimal and his wife in April 2006 is an example. This murder resulted in public outcry, as it was alleged they were murdered due to IP Nimal's attempts to investigated drug related crimes that involved high ranking police officers. Apparently the investigation into the killings is still be hampered by some police officers. And despite the inquiry being reopened after the new Inspector General of Police took office, no prosecutions have been brought in this case thus far.

Defects in the crime investigating machinery have been acknowledged by the police department itself. However, no remedial action has been taken to improve the situation. Of course the Sri Lankan Parliament acknowledged that one of the main reasons for the failures in the investigation mechanisms was the high politicization of the policing system—i.e. political interference. And in an attempt to seek a solution, Parliament passed the 17^th Amendment to the Constitution—among other things providing for an independent National Police Commission (NPC). Also in order to ensure the integrity of this commission, the constitutional amendment provided that appointments to the NPC should be made by a Constitutional Council. However, the members of the Constitutional Council have not been appointed even though the tenure of the earlier councilors has expired. Thus, there government does not seem serious about seeking remedy to the seriously defective nature of the policing system in general and the criminal investigation system in particular.

Although failed investigations are numerous, no senior officer with supervisory responsibilities over criminal investigations has been taken to task and no disciplinary action taken against the high ranking officers for their failure to discharge their command responsibilities regarding investigations into serious crimes, including murder.

Changes taking place in recent years in the administration of justice at the High Courts—which are the highest trial courts relating to serious crimes—also hinders the realization of an adequate remedy. For instance, the High Courts have abandoned the practice of hearing murder trials on a day-to-day basis. Now, once a case is called on a particular day, it can be postponed and this can go on for many years. In communication No. 1250/2004, the United Nations Human Rights Committee held that the Sri Lankan government has violated the rights of the author by, among other things, the delays in the High Court trial relating to an allegation of the use of torture on the author, where the case was postponed over and over again for several years.

As a result of such postponements it is common that up to ten cases are fixed for trial in a High Court on the same date. This implies there would be further postponements of some of these cases even without any hearings taking place on a particular day. And even when a case is taken up for hearing, the duration of the hearing can in some cases be as brief as 15 minutes. Thus, the parties to the case have to come to court many times, often over a period of several years. The fixing of many trials for a single day creates serious problems for the prosecutors, who have to prepare for all the cases that have been fixed every time. Preparing for ten or so serious cases each day can be difficult and such difficulties act contrary to the interests of justice.

The Asian Legal Resource Centre recommends that clear guidelines be laid down for the resumption of day-to-day hearings and for the speedy disposal of trial cases. Long delays act against the interests of justice and prevent the realization of an adequate remedy due to extraneous factors, such as the death or foreign migration of witnesses, the intimidation of witnesses and other unforeseeable circumstances.

Michael Anthony Fernando, who was sentenced to 1 year imprisonment by the Supreme Court of Sri Lanka for 'contempt of court', surrounded by family members and supporters after his release

The lack of proper laws relating to matters such as contempt of court and cases dealing with actions against lawyers for their removal from the list of registered lawyers, also amount to denial of an adequate remedy for persons affected thereby. In United Nations Human Rights Committee (HRC) communication No. 1189/2003, the author complained about being sentenced to one year rigorous imprisonment by the Supreme Court of Sri Lanka without providing him with the right to a fair trial and the assistance of a legal counsel. No law relating to the manner in which trials regarding allegations of contempt of court have been promulgated, despite the Bar Association of Sri Lanka having submitted a draft of such a law.

In expressing its view on the aforementioned communication, the HRC recommended that Sri Lanka enact proper laws regarding contempt of court and this law should also prescribe the relevant punishments. In the said communication, the HRC also held that the imprisonment of the author amounted to illegal detention and was thus a violation of his rights. In a pending case (SC Rule No. 1/2006(D)) regarding a lawyer, Elmore Perera, the Supreme Court of Sri Lanka held that he is not entitled to a list of witnesses, as the alleged incidents happened in the presence of the court. A list of witnesses is normally prescribed in law as an entitlement of a person facing an inquiry that might result in his removal from the list of lawyers. The court also suspended Mr. Perera from practicing law pending the final decision of the case.

In both of these instances the requirement of an adequate remedy implies that the law relating to these matters should be clearly laid down with all the necessary details. The ALRC submits that Sri Lanka, as a State Party, should enact such laws as soon as possible.

Another form of the denial of an adequate remedy as required under article 2 of the ICCPR, relates to killings of ordinary civilians whilst in the custody of the police. These cases are often presented before court with an explanation that the police were compelled to shoot when the arrestee attempted to escape. It has been observed that often when these cases come before the Magistrate at the inquest state, the police officers claim death due to shooting in self defence after which the Magistrate simply delivers a verdict of 'justifiable homicide'. Consequently no further inquiry into the case takes place and the case does not proceed to trial.

However under the Sri Lankan criminal procedure law, no magistrate is empowered to make a declaration of justifiable homicide. Such a verdict can only be arrived after a trial, and only if the trial judge is satisfied by the version given by the accused. The judge will also take into consideration submissions given on behalf of the deceased.

Therefore, the ALRC urges Sri Lanka to take action to halt this practice of magistrates and also for the Supreme Court to issue clear guidelines for use by magistrates regarding inquests into such deaths.