This year’s Independence Day is celebrated amidst a complex background. The disastrous consequences of the 26 December 2004 tsunami have merely added to the burdens faced by Sri Lankas political and legal systems due to the authoritarian model of governance introduced through the 1978 constitution, which gave rise to conflicts in the south, north and east. At this annual event, some thought must be given to the dire situation faced by Sri Lanka and perspectives for the future.
While reconstruction and rehabilitation following the tsunami will be occupying people throughout the country, these issues are intrinsically connected to the acute problems faced by the Sri Lankan political and legal systems for almost three decades now. The prevalent situation can be described as one of an exceptional collapse of the rule of law. All the basic institutions of society are in a state of crisis. The totalitarian political model, which was established in 1978, was continued by all major political parties in power since then. Under this model of governance, democracy became a façade while all the basic institutions of democracy, such as the parliament, courts, government bureaucracy and law enforcement agencies significantly disintegrated and lost much of their credibility. Although the Executive President was to call the shots, he was in fact unable to do so as the model of governance established through previous constitutions and the new model conflicted at every point. The result has been a situation of anarchy, where in almost every sphere of life effective systems of decision making came to a standstill.
This experience has made clear that the Sri Lankan system of Executive Presidency has no real link to either the American or French models of presidency. Both of these systems have well developed forms of checks and balances, and operate within the basic framework of democracy; these models are not totalitarian in nature. The Sri Lankan system is more akin to the dictatorships achieved through constitutional means by persons such as Ferdinand Marcos of the Philippines and Jean-Bedel Bokassa of the Central African Republic, as a leading constitutional lawyer and former Minister of Constitutional Affairs, stated when the 1978 constitution was being promulgated.
After decades of practicing this model, the entire system has become dysfunctional. This is demonstrated by the manner in which the post tsunami situation has been handled. Despite the incredible amount of foreign assistance that poured into the country following the tsunami, basic documentation of those who suffered loss and destruction does not exist. Nor is there even a tentative plan for the rehabilitation of those worst affected due to their proximity to the sea, such as the fisher-folk. There is no proper attempt to even get the tsunami affected children back to school. While money for such plans is available, an effective decision making system is absent.
Impact of such totalitarian rule has been felt most seriously within the framework of Sri Lanka’s justice system, in which–as is commonly acknowledged–people have lost confidence. The policing system, the judiciary, and the prosecution system–which is handled through the Attorney Generals department–have suffered to the extent that effective control of crime through a justice process has become impossible. For this reason there is popular demand for dealing with crime through extrajudicial means. Demands for doing away with the principles of fair trial arise from mass insecurity: with the failure of the system, minimum levels of security can only be maintained when minimum levels of decency are abandoned and anyone perceived as a criminal is dealt with as cruelly as possible. Reliance is thus no more on the operation of the rule of law, but on methods that satisfy an insecure public.
The major defects of the justice system include the absence of any witness protection and the unreasonable delays faced by complainants. A rape victim who makes a complaint for instance, may have to wait 10–15 years before the adjudication process results in a verdict regarding her complaint. This means that the police, if they do investigate the case, will take many months to complete their inquiries. Thereafter, the case will at least go for three to fours years to a Magistrates court through Non-Summary inquiries. The file will then go to the Attorney Generals department, where depending upon the number of files already there may remain for a further period of one to three years or even more. After that it is a matter of two to five years before the High Court and thereafter three to five years before the courts of appeal. Such a system does not inspire confidence in the victims of crime and further exposes them to grave dangers. The victim, throughout this process, has no sense of security against being threatened, harmed or even killed by those she is filing charges against.
The near collapse of the policing system is another crucial defect of the justice process. The monolithic nature of the system has been disturbed by political control; even under the present national emergency, provisions allow the Executive to directly appoint police officers, ignoring the constitutional provision that places all appointments, transfers, promotions and disciplinary control relating to the police force in the hands of the National Police Commission. The National Police Commission itself is unable to undertake its mandate with the puny staff it has and is furthermore under constant pressure to not assert disciplinary control upon police officers. Meanwhile, torture, corruption and abuse of power occur within the police department with impunity. Those who complain against the police may be killed as in the case of torture victim Gerald Perera, or habitually tortured and threatened to withdraw complaints as in many cases reported to the Inspector General of Police. They may even be implicated in false cases with serious charges filed against them.
Finally, the extraordinary loss of confidence of the people in the legal profession is also a defect of the justice system. The control of the litigation process by the police–particularly in the Magistrates courts–is such that they direct complainants to lawyers selected by them, who then pay the police substantial commissions from their fees. Apart from such corruption, the fear people have of long years of litigation gives numerous opportunities to lawyers to betray their clients.
It is an illusion that the aftermath of the tsunami as well as problems related to the minority conflict with the Tamils can be resolved despite the political, constitutional and justice system crisis that exists in the country. This illusion is propagated by articulate sections within the country who are spokespersons for political parties, ‘peace groups’, alternative policy groups and others. However, none of them are serious about finding solutions to any of these problems. There is no attempt to engage the ordinary people in a discourse about their problems. Great deception is practiced, often with the support of foreign funds, exploiting those who are little familiar with the political culture of Sri Lanka.
What then are people’s prospects as they arrive at another Independence Day? It is most likely that hundreds of thousands of tsunami victims will face intense poverty despite the massive contributions from compassionate people, outside and inside the country. A ‘displaced persons camp culture’ is very likely to take root. Tales of neglected children and children who lost their educational opportunities also are likely to be increasingly heard. Above all, the country’s sea dependent people will be exposed to greater levels of poverty than those they would normally face. Inevitably, the loss of faith in the justice system will cause arbitrary forms of revenge when people take the law into their own hands.
This bleak picture can be changed only if more courageous voices rise against the widespread anarchy, corruption and lack of the rule of law. The only way out is by ending the authoritarian style of rule introduced through the 1978 constitution. This requires greater articulation by people themselves of their problems and formulations of policy on this basis. Until this happens every Independence Day will be a day of disappointment and a day that reminds the population of the damage that is being caused to future generations of Sri Lankans who will be denied the right to live in a democracy with full respect for the rule of law.
