The 100-day reform programme of the new government is an opportune moment for rebuilding the legal structure of Sri Lanka, a precondition for achieving the “good governance” that has been promised.
The legal structure of Sri Lanka has suffered a great fall, due to what has been termed as “tomfooling with the constitution”. From 1972 on, and even more so in the wake of the 1978 Constitution, drastic decline in respect for law has been witnessed. In fact, this period has seen a concerted political assault on the basic principles of separation of powers and the rule of law.
The details of this decline have been well documented. Now is the time to envisage ways to rebuild the legal foundations of the country. This will require attending to the following: removal of all provisions of the 1978 Constitution contrary to the basic principles of democracy and the rule of law; resuscitating basic public institutions by making corrections; re-invigorating lost traditions relating to the independence of the judiciary and removing obstacles to the sustainability of the judicial process; reforming legal education; and undoing psychological damage caused by extensive lawless measures.
Removal of Constitution provisions contrary to principles of democracy and the rule of law:
The process of removing the contrary provisions has already begun; proposals have been made under the 100-day programme of the new government to remove all provisions of the 1978 Constitution that undermine democracy and the rule of law. Today (21st January 2015), the draft legislation to repeal the 18th Amendment to the Constitution is tabled before Parliament; expeditious passage is expected; other measures will be introduced thereafter. The proposed measures are necessary and will pave the way for further measures to strengthen the legal structure of the country. However, the task of undoing all the damage done by the 1978 Constitution will necessarily be very difficult and will require consistent commitment for a considerable period. Much will depend on a conscientious group of persons, both from the government and the civil society, sticking to the task of constitutional and legal reform. The Bar Association, which has been playing an admirable role in the recent times, will need to sustain its efforts till these difficult tasks are achieved. Much will also depend on legal scholars and other opinion makers making their contribution. A critical and well-informed public opinion on legal issues is direly needed.
Resuscitating the basic public institutions:
All public institutions have suffered serious damage over several decades. Resuscitating the 17th Amendment would be the initial measure for undoing this damage. However, much more needs to be done, particularly in terms of creating functional institutions, by way of necessary budgetary allocations to enable the required improvements. Considerable budgetary allocations need to be made in order to improve Sri Lanka’s policing system, one of the institutions seriously undermined under the administration of the 1978 Constitution. The major excuse for inefficiency in this regard is the lack of adequate funding for the development of the necessary expertise in terms of modern requirements and also funding for basic material requirements for the improvement of communications, transport, forensic equipment, and other such facilities.
The structure of command responsibility within the policing system has witnessed considerable decline due to the politicization process introduced during the last decades. Of particular concern is the manner in which the Deputy Inspector Generals of Police and the Assistant Superintendents of police have been playing their leadership and supervisory roles over the rank and file of the organization. Much of the functioning of the local police stations in the manner required by law will depend on the way corrections are made in the supervisory roles played by the Assistants Superintendents of police. It is encouraging that the Inspector General of Police (IGP) has shown great courage and leadership to function within the framework of the rule of law, as demonstrated by the manner in which he extended his cooperation for the conduct of the recent presidential election. It is to be hoped that he will initiate a process of upgrading the quality of his high-ranking officers and thereby pave the way for change in the manner in which the rank and file continues their work. The IGP’s attention should be directed towards restoring the discipline of his officers. Complaints of rampant corruption, disrespect for the public – in particular for the citizens of lower income groups – the practice of extrajudicial killings, and the widespread use of torture and ill-treatment are the unfortunate characteristics of the Sri Lankan police. One of the results of this is the loss of public confidence and the public’s refusal to cooperate. Without a qualitative change of cooperation between the police and the public, the promised goal of good governance cannot be achieved. Therefore, one of the priorities for the government must be to reform the police.
A further aspect relating to the promises of the new government is curbing corruption. However, the present institutional framework for this, available through Bribery and Corruption Commission, is wholly inadequate. The public has noticed the tendency for this Commission itself to be corrupt and for the most part the Commission has been unable to win public confidence. While some degree of credibility can be achieved by the removal of those who have proved to be corrupt and inefficient, major improvement can only be achieved if the necessary amendments to the law relating to the Commission are made and considerable budgetary allocations are made for it to function as an independent institution.
In the past decades, there has been much criticism against the functioning of the Attorney General’s Department. It is to be hoped that with the government keeping its promise not to interfere with the legal process, the Department will now take its own initiative to regain lost credibility. The legal officers of the Department must critically evaluate what went wrong in the recent past and urge for reforms. The present Attorney General, according to reports, has demonstrated considerable courage in resisting the attempt of the former President to subvert the counting of the ballots by way of imposing emergency rule. It is to be hoped this same courage will be demonstrated to zealously safeguard the Department’s independence and also to ensure a high degree of responsible commitment to adhere to the rule of law by all the members of the Department. One of the criticisms of the Department in the recent decades has been the involvement of some of its officers in resisting the legal process to ensure impunity for security officers that have allegations against them. Such compromises will undermine the Department’s credibility and the government’s promise to ensure good governance. Particularly in the area of fundamental rights, the role that has been played by the Department should be critically examined, and corrective measures must be taken. Department officers supporting officers charged with fundamental rights violations is a practice that should be discontinued and earlier traditions regarding this matter should be restored.
Re-invigorating judicial independence and re-establishing sustainability of judicial process:
The crucial institution that needs change is the Judiciary. The process of politicization over the decades has undermined the Judiciary even at its highest levels. The last fatal attack on the Judiciary was the removal of former Chief Justice Dr. Shirani Bandaranayake and the appointment of Mr. Mohan Peiris as the Chief Justice. This needs to be addressed immediately; corrective measures must be taken forthwith. Trust in the independence of the judiciary cannot be restored till this problem remains.
After such corrective actions are taken there should be re-examination about the many wrongs that have taken place in terms of appointment policies and other interferences. Much of this change should start from within. The judiciary and the legal profession must initiate a visible process of self-correction.
While the Bar Association has won admiration for its courageous struggle to safeguard the independence of the judiciary, it should be noted that there is public outrage about the manner in which the lawyers themselves abuse the legal process and have been a part of forces that have contributed to undermining of the proper administration of law. The Bar Association should strengthen the disciplinary processes regarding its own members, as it is done in all other countries where the rule of law is maintained.
Reforming legal education:
There is something radically wrong with the way legal education is being conducted in all the institutions such as the Law College and also the faculties of law. The assault on law and the judicial process, which has taken place in the last decade, has met no serious resistance from the legal profession as a whole. This lack of resistance is a clear indication of poor education regarding law and the legal process. Legal education must create lawyers that are imbibed with a deep understanding of what is involved in the maintenance of the rule of law. They must also have a deep enough understanding of the factors that enable the functioning of judicial independence. The law student must be able to gain a critical understanding of what has gone wrong with the legal structure in the country. Such education must create a sense of disgust against the practices of the legal profession that easily compromise all principles and behave in a despicable fashion betraying all the great traditions associated with law, the judicial process, and the legal profession. It is up to the academic staff to take a critical view of the kind of education that has been imparted and to take necessary measures to qualitatively improve such measures in the future.
Undoing the psychological damage caused by extensive lawless measures:
During the last decades, people belonging to all sectors of the society have suffered greatly due to the way the lawlessness was been allowed to proliferate. As the Asian Human Rights Commission has repeatedly pointed out, the idea of legality has lost relevance in Sri Lanka. Many of the revelations in the recent weeks – of the unbelievable levels to which state resources have been abused by the previous regime – relate to actions made possible only because of such lawlessness.
Restoring the confidence of the people in the law and judicial process will not be an easy task. Much work will have to be done both by the Government and by the civil society in Sri Lanka, including its intellectual community, by way of critical engagement on this issue for a considerable period of time before people can begin to regain confidence again. Much work also needs to be done through the media, particularly through the use of state media, by way of encouragement of critical debates on the rule of law, if popular education needed to achieve good governance is to be realized.
