Basil Fernando
A preliminary Remark on Possible Objections to A Conversation on Rule of Law And Democracy In Sri Lanka
I realize at the very outset that a conversation on rule of law and democracy in Sri Lanka would be objected to by different persons for several reasons. One group considers this conversation as largely irrelevant. Their position is that both rule of law and democracy are extremely difficult to achieve, and even impossible, in Sri Lanka. Their position is based on the perception that things have gone too far and that recovery is a Herculean task. I believe that a very large part of the population in all communities and almost the entirety of the more educated sections of Sri Lanka share this point of view to some extent or another.
A different kind of objection comes from the status quo; that is, those who hold power and benefit from it. For them, the authoritarian system created by the 1978 Constitution has come to stay, and anyway they would want it to stay. To oppose it threatens not only their power but also their privileges. Associated with this I believe is a fear that if things change in the direction of rule of law and democracy, they may be held accountable for many serious transgressions. They wish, therefore, that at all costs the situation should remain as it is.
There is a third kind of objection which comes from those who hold an extremely nationalist point of view based on their racial origins. Those who belong to this category among the Sinhalese believe that any change towards rule of law and democracy would favour the more extremist section of the militants of the Tamil minority, who they believe would be satisfied with nothing else except a separate state. Therefore, rule of law and democracy is seen by them as a dangerous path. On the other hand, those who hold an extremist position among the Tamil militants hold that talk of democracy and rule of law in Sri Lanka is an affair that belongs to the Sinhala state and that therefore it would threaten the Tamil minority. In any case, they would claim that the whole issue is irrelevant to minorities and that they have no reason to be engaged in this conversation. They would say that the starting point is the recognition that Tamils are a separate nation, and the fact that this would imply a discourse on rule of law and democracy for the entire country is not a matter of their concern.
There is another point of view, which is the point of view that I share, which is that the discourse on rule of law and democracy is the starting point for any rational dialogue on the future of Sri Lanka. This point of view does not refuse to recognize the difficulties involved in achieving rule of law and democracy in Sri Lanka. In fact, firmly based on an understanding of the enormity of the difficulties involved, they would still assert that there is no choice but to begin this conversation.
The Past
By the wayside
This wreath
with no name attached
is for you
who has no grave.
As the place of earth
which embraced you
could not be found,
this wreath was placed by the wayside.
Forgive me.
Forgive me
for placing a memorial for you
by the roadside.
– Basil Fernando. Translated from Sinhala
(Monument to the Disappeared, Waduwa Junction, Seeduwa, Sri Lanka)
I wrote this poem in the latter part of the year 1971. 1971 marked a significant moment for Sri Lanka, not because of the oft-called insurrection of a leftist group in April but because of the nature of the ruthless repression instigated by the government at the time with the support of the opposition. This repression led to a departure from the Sri Lanka that once was. While there have been studies conducted on the 1971 JVP uprising and the events which followed in the south, north and east of the country, there has not been, in my opinion, enough reflection on the implications of this repression for the people of Sri Lanka.
The poem was written to honor the lives of those who were executed and disposed of; who disappeared without leaving a trace. There is a monument in Seeduwa close to the Bandaranaike International Airport which has pictures of 500 people from the area who were among those killed during this insurrection. Research into the disappearances has established that those who were killed were not directly bearing arms or seriously involved in the politics of the JVP. Rather, many of those who disappeared were picked up by the police on unsupported suspicions – like anonymous letters or unchecked verbal tips. Their tragic stories were told, and in response, I wrote this poem.
I was actually a total outsider to the events surrounding the insurrection. I was a final year law student at the University of Colombo at the time. At the time, legal studies were only conducted in English. As such, law students were often far removed from the realities of Sri Lankan politics, particularly those of the rural countryside. These politics had an impact on the students studying arts and, to a certain extent, those studying sciences. Indeed, there were students of medicine who were brutally killed under accusations that they were associated with the JVP. However, within the faculty of law, not a single one of my fellow students had been questioned, arrested or given any trouble related to the insurrection. As such, my poem was not a reflection of someone I knew who was lost in this battle, but of the larger tragedy which took place in Sri Lanka.
This tragedy was a manifestation of a part of the Sri Lankan psyche which was inherited from India’s caste tradition. A number of studies have been conducted on India’s penal system after the emergence of the caste system in pre-Buddhist India. Such a caste system, in my opinion, did not exist in Sri Lanka during that time. Rather, it came into play around the 8th century AD, and became the main form of social organization during the Polonnaruwa period. The penal philosophy of caste is premised on disproportionate punishment. According to this philosophy the punishment depended on the status of the person in terms of the caste ladder. For example, while a murder by a Brahmin of a Sudra may be punished by way of purification rituals, the murder of a Brahmin by a Sudra would be punished by the death, not only of the culprit but also his family. Sometimes the punishment would be extended to every person of the same caste within the same locality. Even petty theft by a Sudra or worse by a Dalit (who were at earlier times called ‘Untouchables’) could be punished either by death or by an extreme form of physical punishment. Here is one example:
“It all began with a Dalit’s act of stealing corn, on a rainy day in August 1988, from a field close by. The guilty Dalit owned up to the theft and accepted that he would have to make amends. The proper legal way was to hand him over to the appropriate agencies of the state. But upper-caste villagers literally took the law into their own hands and made the thief and his companions eat human excreta. Another example is: Another similar episode in 1987 at Bidaralli, a village in Bleguam district, reveals one more facet of the problem. A violent clash took place in this village on the issue of a Dalit boy’s act of ‘teasing’ an upper-class girl. His crime was that he had ‘pulled a girl’, but the village societies retaliatory measure was to impost a total boycott of Dalits. This was so severe that the Dalits could not reach the village’s drinking water sources. One can cite hundreds of such — and much more cruel – instances”.
The Flaming Feet and other essays: The Dalit Movement in India by R.R. Nagaraj
In one of the greatest novels to be published in India in recent times ‘The White Tiger’ Aravind Adigar sums up the Indian penal philosophy thus:
“The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop.
Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench — the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know they’re next. Yet they do not rebel. They do not try to get out of the coop.
The very same thing is done with human beings in this country”.
The novelist thereafter explains why the ‘rooster coop’ was made possible. He attributes it to the Indian conception of family and the system of punishment where entire families of the servant class are punished for any transgression of one member of the family.
It was the same theory of disproportionate punishment that was used by the Sri Lankan state in relation to all challenges to its authority, both in the south in terms of the JVP uprisings and also in the north and east in terms of the conflict between the Sri Lankan military and the LTTE and other militant groups. Regarding the 1971 reprisals, Lionel Bopage writes:
“The empirical record provides the bare bones of this encounter between the State and the JVP. According to the Criminal Justice Commission (CJC), the JVP was responsible for 41 civilian deaths, the killing of 63 members of the armed forces and the wounding of 305 members of the armed forces. In retaliation the United Front government killed between 5,000 and 10,000 JVP cares and sympathisers and put into arbitrary detention from 15,000 to 25,000 supporters of the JVP. Many JVP cadres were summarily executed. One of the more notorious perpetrators, Sandhurst-educated Lieutenant Colonel Cyril Ranatunga, said:
We have learned too many lessons from Vietnam and Malaysia. We must destroy them completely”.
The Lionel Bopage Story by Michael Colin Cooke
Again, in the second JVP uprising between 1987 and 1991 the number of persons who were forcibly made to disappear was close to 30,000 going by the figures given by the commissions that were later appointed by the government to investigate the involuntary disappearances during this time. Most of the persons disappeared after they were taken into custody by the police or the military.
Again, it was the same theory of disproportionate punishment which was practiced in retaliation to the challenges by the Tamil militant groups including the LTTE. The exact numbers are not available as there have been no investigations into the extent of JVP related repression of the Tamil rebels. However, some examples can be given to illustrate the staggering disproportionality. In July 1983, 13 soldiers were ambushed and killed by the LTTE in the north. The UNP government led by President J.R. Jayewardene unleashed the riots that came to be known as Black July. The scores of people killed or attacked, the houses that were burnt and the displacement of the Tamils from many parts of Sri Lanka literally shocked the world. The fact that President Jayewardene was aware that riots would break out if the funerals of the 13 soldiers were held in Colombo has been well established. Had he not retaliated in this manner the subsequent internal warfare that developed between the Sri Lankan military and the LTTE might not have happened in the manner it did.
The practice of disproportionate punishment has now led to a situation where the normal workings of the legal system have been paralysed.
In the studies done on Sri Lanka very little attention has been paid to the ongoing impact of caste consciousness among the Sri Lankans. Perhaps due to the nationalism of both the Sinhala and Tamil community caste is seen as an embarrassing factor. However, the internalization of caste is very real and very deep. The argument is that some of the more outward aspects of caste have been reduced in Sri Lanka due to education, mobility and other factors. However, the deeper impact of caste which was practiced for centuries still remains intact. In the time period usually referred to as the Polonnaruwa period caste became the main form of social organisation in Sri Lanka. Caste had such an impact that even Buddhasanga in their religious orders became divided on the basis of caste despite of the fact that Gautauma Buddha was among the foremost opponent of caste division in India.
Historically, the introduction of caste into Sri Lanka may have happened around the eighth century. The tremendous religio-cultural revolution that virtually wiped out Buddhism from India reached Sri Lanka through many currents and caused a colossal religio-cultural transformation in the country.
This impact of this transformation is felt strongly even in present day Sri Lanka. Among other things, Sri Lanka assimilated the penal philosophy of caste which is, as mentioned above, disproportionate punishment. In understanding the ruthlessness with which all insurgencies have been dealt with in the last 40 years in Sri Lanka the influence of this penal philosophy needs to be studied more closely. This is a task for Sri Lankan intellectuals of all communities. In India due to far-sighted thinkers such as Dr. B.R. Ambekhar, Sri Narayana Guru and others there are very serious scholars who at present are contributing a great deal to the understanding of the continuing influence of caste in contemporary politics. Their works could guide similar studies related to Sri Lanka.
The result of all this is the creation of many problems within the legal and political system of Sri Lanka which until now have defied any solution. Some of the basic problems are summed up in the below.
The Ten Most Difficult Human Rights Problems in Sri Lanka
Problem no. 1: The Constitution
The 1978 Constitution remains the greatest obstacle to the achievement of human rights in Sri Lanka. This Constitution is also the most important obstacle to the effective functioning of the rule of law in Sri Lanka. The two subjects of human rights and rule of law are deeply intertwined and the 1978 Constitution remains the greatest obstacle in securing both.
Article 35-(1) of the constitution places the executive president above the law. Once a person is placed above the law, there is no way that the rule of law system can function effectively. Indeed, the rule of law is established on the belief that the law is king. However, this is not the case in Sri Lanka.
When the executive president is placed above the law, the powers of the Parliament (the law-making body within a democracy) and the rule of law system are greatly reduced. In fact, the executive president becomes the lawmaker and the Parliament becomes the place where the executive president’s laws are made official; it has no lawmaking capacity of its own. If the executive president cannot make laws, then the spectrum of power that the executive president holds (which is enshrined in the 1978 Constitution) is lost. The executive president can continue to do as it pleases, so long as it has a Parliament which will submit to its every whim.
The political struggle to ensure a two-thirds majority of the ruling party in Parliament is based on the assumption that the executive president must be the lawmaker. When the executive presidential system was created, the ruling party had almost 80% of the seats in Parliament. The new Constitution was created in order to enhance the power of the ruling party in this situation. Later, when this power was lost under President Premadasa and President Chandrika Bandaranaike, the executive presidency was unable to function in the manner envisaged by the writers of the 1978 Constitution. When Mahinda Rajapaksa became president, his party tried to achieve the two-thirds majority in Parliament by buying members of the opposition into their government. These opposition members were given numerous privileges, such as cabinet posts, while the government’s party members did not have access to these positions.
The 17th Amendment to the Constitution was introduced at a time where the executive president did not have a two-thirds majority in Parliament. It was implemented to limit the power of the executive president, particularly in his choice of appointments of people to important government positions. Unfortunately, this experiment was short-lived; President Rajapaksa’s government put a stopper to the 17th Amendment. Soon after, the 18th Amendment was introduced which nullified the limited reforms created by the 17th Amendment. It was no longer possible for any of the provisions in the 17th Amendment to operate effectively, a fact which was in line with the executive presidency as envisaged by the 1978 Constitution.
The 1978 Constitution envisages a situation in which one person controls the entire country without being held accountable by the Parliament and public institutions. Public institutions function under the direct control of the executive president and on the basis of whatever he considers important. With such an arrangement, the president’s policies take the place of the law and become the government’s modus operandi. The 1978 Constitution displaced the law as a system with its own independent claims. With the 1978 Constitution the law has become a policy of the executive president’s regime.
In such a system, the government servant becomes a policy operator, carrying out the instructions of the executive president. The policing system, which should be a law enforcement agency, is rendered a policy enforcement group and loses any power it once had to independently investigate crimes. Iindependence gives way for the policies of the president. As such, the policing system, which is integral to a functioning rule of law system, cannot function. This process of politicization has led to the ultimate failure of Sri Lanka’s law enforcement agency.
Human rights can only have meaning and significance when there are effective remedies for the victims of rights violations and appropriate redress mechanisms for the perpetrators of these violations. The 1978 Constitution makes this impossible. An independent investigation into a human rights violation – one that does not involve government interference – becomes impossible. This is because any kind of investigation into human rights abuse will be subjected to the policies of the ruling government that does not want to jeopardize its place in society by admitting that it has allowed for violations to occur. Investigations into violations of human rights by state agents are only possible when the law is a realm that has its own claims. When the law becomes an expression of government policy, independent investigations become impossible. If and when investigations are not independent, the aims of the investigation cannot be achieved.
Moreover, the executive presidential system does not allow for the independent functioning of the prosecutor’s office, as it seeks to ensure that the function of the prosecutors’ office does not collide with government policies. As such, the prosecutors’ office is only independent when government policy and the prosecutors’ function are not in conflict. Effectively, the prosecutors’ office works at the behest of the government. When the executive president or the ruling party wants something which is contrary to the rule of law, such as the withdrawal of criminal charges, the attorney general is not able to object to these commands.
The judicial system is not completely subjected to government policy. However, it might indirectly operate under government policy in terms of the control of investigation mechanisms and the limited power of the prosecutors’ office. Moreover, influence on judicial decisions is secured by the president’s selected appointment of judges to the judicial positions in the state.
Effectively, redress of human rights abuses is not possible under the 1978 Constitution. This is why there has been a public outcry regarding the lack of investigation into serious crimes against journalists and politicians. However, the situation cannot be corrected so long as the 1978 Constitution remains the textual keystone of Sri Lanka.
Ultimately, the 1978 Constitution and a functioning rule of law system are incompatible. The obligations that the state of Sri Lanka has agreed to by ratifying UN conventions are incompatible with the 1978 Constitution. Instead, what exists is a system that makes the realization of human rights within an effective rule of law system an impossibility.
Problem no. 2: Displacement of the Juridical Sphere
Mr. Nick Cheesman, a long time friend and colleague, has recently submitted his thesis entitled “Politics of law and order in Myanmar”, which I had the privilege of reading. It is a remarkable study and a study which has been urgently needed. He makes the very interesting distinction between the terms ‘law and order’ and ‘rule of law’. In terms of Sri Lanka the common term used is ‘law and peace’ (neethiya samaya). What this means is that whatever the state does in the name of achieving peace is deemed legal. Therefore, the law does not refer to any normative standards, but is shaped by the requirements of the administration in justifying a given police or military strategy. This theme could easily be the subject matter for a larger study, but for the purpose of this discussion a few illustrations can be given. When the administration thought it fit to allow the extrajudicial killings as a ‘necessary’ element of the counter insurgency strategy, the law relating to post mortems was suspended by way of emergency regulations and an officer not below the rank of an ASP was given the right to authorise the disposal of a body. There was no procedure for documenting such authorisations and therefore any death under custody would have fallen into this category. Yet another example is the fact that causing forced disappearances is not illegal in Sri Lanka seeing that forced disappearances is not legally defined as a crime within Sri Lanka.
In my book, ‘Sri Lanka – Impunity, criminal justice & human rights’ I noted that legality has lost its meaning in Sri Lanka. I pointed out how it is has become increasingly difficult to distinguish between what is legal and what is illegal in Sri Lanka and that even if a distinction can be made it has no consequences. It is for example difficult to determine, whether abductions carried out by the police, the military or a paramilitary group are legal or illegal. And even if one was to hold that such action was illegal it would not have any consequence as abductors that are state officials are assured impunity. Just to give an example of this one can relate and incidence which happened just a few days before this article was written. On the 11th March 2012, four military personnel, including two captains, a lieutenant and a corporal, were caught by a large group of people while trying to abduct the Mayor of Kolonnawa and they were arrested on the spot by the police. They were held for two hours at the police station. After two hours a senior DIG came and released them and within the same day the Officer-in-Charge of the station was transferred. Within hours the government claimed that the people had mistaken these officers as abductors. With that the case was closed! The large number of incidences, which under normal law would be seen as crimes, are treated as authorized acts due to the emergency regulations and the anti-terrorism laws. This makes a distinction between legal and illegal meaningless.
Thus, the acts of the executive which are basically administrative in nature have subsumed matters that in normal times would have been considered juridical. The foundation of law is the recognition of the juridical sphere. If the recognition of the juridical sphere is displaced by the administrative sphere, then the very foundation of the law is undermined.
The above statement may be explained by going into the meaning of ‘juridical’ realm as compared to the ‘administrative’ sphere. Juridical is defined as follows:
“Relating to administration of justice, or office of a judge. Regular; done in conformity to the laws of the country and the practice which is there observed” (Black’s Law Dictionary).
“: of or relating to the administration of justice or the office of a judge
: of or relating to law or jurisprudence : legal
Latin juridicus, from jur-, jus + dicere to say — more atdiction
First Known Use: 1502” (Merriam-Webster).
By way of illustration, the meaning of ‘juridical’ can be explained by comparing it to the term ‘medical’. Doctors take decisions based on their professional knowledge of medical science, theories, and practices. They will analyze a patient’s complaint on the basis of predetermined methods of gathering information and diagnose in accordance with the principles of medical knowledge.
In the same way, those who act within the judicial system are expected to gather their information, analyze this information and arrive at findings on the basis of legal notions and the way the law is practiced. Compared with this, the meaning of ‘administrative’ describes action taken by the executive. The term refers to the considerations, which the executive takes into account when making a decision and the actions that are taken based on these considerations.
Thus, the manner in which one arrives at a decision within the juridical sphere and the administrative sphere is of a distinctly different nature and the two are separate processes. When those who are in the juridical field are compelled by circumstances to think and act in a similar manner as those who are dealing with the administrative aspects, then the judicial is replaced with the administrative.
A few examples should be mentioned to illustrate this matter. The executive, dealing with the problem of crime, may find it more efficient to arrest and detain persons whom they perceive as creating obstacles to the manner in which the executive is trying to resolve problems. However, to those who have to act within the juridical sphere, for example judges, what may be perceived as efficient is not the basic principle in dealing with arrest and detention. The judges have to make their decisions on the arrest on the basis of juridical notions that involve the rights of the individual and personal freedom. In the judicial sphere, an arrest is permitted only in the process of investigations into a crime so as to bring the person before the court or by way of punishment after a conviction. What the law understands as a crime would itself be defined and interpreted only in terms of the juridical notions of what a crime is. The executive may want to define crime in terms of whatever it considers an obstacle to its actions. For example, the executive may think that a person leading a demonstration is a threat and may want to arrest and detain him. However, those who are to act within the parameters of the juridical realm recognize the juridical notions of the freedom to protest and the limits of that freedom that are also defined in juridical terms.
The executive may wish to modify the law so that juridical principles are overlooked and replaced with administrative policies and considerations. If they succeed in this endeavor it amounts to a displacement of the juridical sphere which is replaced by the logic in the administrative sphere.
The independence of the judiciary can only be exercised if the sphere of the judicial is clearly understood, recognized and respected. If the juridical logic is displaced by the administrative logic, the independence of the judiciary is undermined which is its very foundation. If the judges make decisions purely on the basis of administrative considerations and do not take juridical considerations into account, then their decisions take on an administrative nature and they lose their juridical substance.
This transformation has taken place in many countries, particularly in countries where the juridical realm has not been developed or where the juridical sphere has been displaced by the logic of the administration. These countries appear to have an independent judiciary (there are courts, the judges are wearing the costumes of judicial officers, and are even passing “judgments” and orders), but the logic underlying the exercise of justice is that of the executive – it is not a logic based on the foundations of legal knowledge.
Problem no. 3: Extrajudicial Punishment Replacing Punishment under the Criminal Justice Law
Extrajudicial punishment has become an integral part of the way the Sri Lankan government attempts to deal with the country’s problems. Over the last 40 years, ever since the massive repression of the Sri Lankan people commenced in 1971, extrajudicial punishment has been the government’s mainstay when dealing with what they call ‘extraordinary situations.’ In extraordinary situations it is now believed that the government has the right and the authority to kill people who have been arrested.
Despite a number of judicial statements opposing this practice, tens of thousands of people have been assassinated and disposed of after arrest. It has been estimated that in 1971, between 5000 and 10,000 people were forcefully made to disappear. Most of these people were taken from their homes; many also surrendered to the police or the army. The vast majority of people were taken away with assurances to their families and loved ones that they would be brought back soon, but most were never seen again. On some occasions, the victims were held for a few days at police stations or for a few weeks in detention centers. Many, however, were killed on the day of the arrest.
The practice of extrajudicial killings was renewed in the 1980s during the second uprising of the JVP in the south of the country. In recent years, commissions have been appointed to enquire into these forced or involuntary disappearances and the numbers recorded come close to 30,000. Many people claim that the actual figures are more than this. The exact numbers of Tamil detainees who disappeared is difficult to estimate as no official enquiries have ever been made into these cases. Without exaggeration, these numbers could also be in the thousands.
What kind of justification is there for killing someone after arrest? From the perspective of rule of law principles and international human rights policy, there is no justification for killing someone after they have been arrested. If there is evidence against people, they should be brought before a court of law, given a fair trial and prosecuted accordingly. The court should decide the punishment, including the death sentence, if this is the proper verdict for the crime committed.
However, the abuse suffered by victims of extrajudicial punishment was meted out by the police, military or paramilitary officers, rather than a legal institution. Many people were killed with direct orders from state officers in positions of power or political members of the insurgency movements. The majority of people, however, were killed on general orders to kill after arrest. In almost all instances of these disappearances, there were no records kept of the circumstances surrounding the arrest and detention. Indeed, the general orders also mandated that no evidence of the murder, namely the dead body, should remain.
In legal terms, no state official should have the power to arbitrarily arrest, detain and kill a person. However, since these actions are carried out anyway, it is clear that these disappearances are done with the understanding, and perhaps even encouragement, of highly ranked state officials and politicians. The giving of unjustified power is part of the culture of impunity which has developed in Sri Lanka over the past 40 years. There has been no attempt to question or alter this practice. When media organizations discuss the issue of forced disappearances, torture, prolonged detention and other deprivations of liberty, they are deemed ‘subversive’ and the discussion is quickly curtailed.
Since the late 1990s, the practice of extrajudicial punishments has extended from counter-insurgency operations to other activities targeting people considered ‘undesirable.’ For example, about five years ago, a large number of people who were considered to be criminals were rounded up and killed and their bodies disposed of. In media and police reports, police officers claimed that the detainees tried to escape while they were in custody and had to be shot by the officers. These reports were accepted by judicial magistrates, who declared a verdict of ‘justifiable homicide’ and did not call for further investigation. As such, few detailed enquiries have been carried out into the circumstances of these deaths.
Aside from these alleged criminals, extrajudicial punishments have been directed at critics of state agents or government policies, such as Lasantha Wickramatunge, the editor of a well-known newspaper. Besides the murder of journalists, other critics of the government have been abducted, tortured and left in an unknown location. In a recent incident of such an attack, two human rights activists named Lalith and Kugen, in the east of Sri Lanka disappeared on Human Rights Day (December 10th 2011) as they engaged in a campaign for increased awareness of human rights in Sri Lanka.
In another disappearance, a citizen who had filed a human rights application to the Supreme Court was abducted two days before the case went to trial. Ransom demands have been made, but his whereabouts remain unknown. Indeed, disappearances are a regular occurrence in Sri Lanka. Occasionally, the victims are returned to their homes or manage to escape. For example, an activist who demonstrated on behalf of fisher folk in Sri Lanka submitted a complaint to the police regarding an attempted abduction. He said that he had narrowly escaped with the help of his friends. After making complaints and learning information about the attempts made to abduct him, he chose to leave Sri Lanka. In another case, a law student complained of harassment, namely threats of abduction and intimidating phone calls, when he filed a complaint in the law college regarding the question papers of a final exam.
At this moment in time, it is vitally important that we begin to speak about the fact that extrajudicial processes have taken the place of legal action in Sri Lanka. According to the rule of law, there must be a justifiable reason for the arrest of any person, and after they are arrested, she or he must be produced in court where they are given a fair trial. Legally speaking, the right to punish is a power that is held by the courts alone. Only a court can declare a person to have committed an offence and declare an appropriate punishment. Now, however, arbitrary punishments are given outside of the judicial process and the details of these punishments are uncertain.
This is one of the most significant ways in which the fabric of human rights in Sri Lanka is being threatened. A continued culture of large-scale extrajudicial punishment has created an intimidated society and a general culture of fear in Sri Lanka. Any discussion of human rights in Sri Lanka must take the issue of extrajudicial punishments and forced disappearances into consideration.
Problem no. 4: The Diminishing Authority of the Courts
Since 1972, there have been attempts to diminish the power and authority of the courts of law in Sri Lanka. The unfortunate success of these attempts has severely affected the protection of the citizens’ personal freedoms, Sri Lanka’s democratic foundations and the rule of law system.
The creation of a legal system under British colonial rule meant that the recognition of the importance of personal freedom has always been a problematic issue in Sri Lanka. The fact that a colonial power introduced a system protecting personal freedom was a contradiction in terms. Effective legal systems are those which have been developed for the people by the people over a long period of time, leading to firm agreements which are not to be interfered with. The way that the legal system developed in Sri Lanka, however, has been nowhere close to this ideal.
In 1915, during the riots, a number of people were arrested. One of the arrested, W.A.D. Silva, filed a habeas corpus application before the Supreme Court. The courts had to consider whether the situation at hand could be described as war and how their ruling would impact the courts’ attempts to protect the individual’s personal liberties. The court held that they did not have the power to decide on this issue.
About 25 years later, an Australian man named Mark Bracegirdle contested the issue of his personal freedom before a Sri Lankan court. This remarkable case demonstrated that the idea of the protection of the individual by the courts had become deeply ingrained into the Sri Lankan legal system. Bracegirdle had become interested in supporting the cause of the Sri Lankan people, particularly those with leftist political orientations. He was severely disliked by members of the plantation community, who conspired to have him deported from Sri Lanka. As his work continued, the governor ordered Bracegirdle’s arrest and deportation.
This case was contested before the courts and a legal conflict ensued regarding questions which were of great significance to future generations. One such issue was whether the courts, during a time of war, had the power to deny a government order that had come from the Parliament’s highest post. According to the government, the courts did not have the authority to do this. However, the Supreme Court ruled that since the protection of an individual’s liberties was the court’s prerogative, they had a duty to intervene when a person’s freedom was being violated. Accordingly, the governor’s order to deport Bracegirdle was annulled and he was given the freedom to stay in Sri Lanka.
In doing so, the Supreme Court brought a legal principle that is well-established in Britain into Sri Lankan national law: the protection of the personal freedoms of the individual irrespective of interference by any other power. This principle is of great importance. The position on the importance of personal freedom finds expression in the writings of A.V. Dicey in his book on the Constitution. He writes:
“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority, and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus“.
As such, it was agreed that the Sri Lankan court had the power and the duty to protect personal freedoms under any circumstances, including war. However, this position has fundamentally changed since 1972 and this shift in principle is expressed in the Constitution of 1978. In 1972, the power of the judicial review was removed. This is a principle within all Common Law countries wherein the courts have the authority to examine the validity of a law at any given time, and if the validity is in question, the law can be eliminated. After the power of the judicial review was removed, the examination of a law’s validity was confined to a short period of time before the bill was passed on to Parliament. The removal of the power of the judicial review remains one of the greatest blows to the protection of democracy, human rights and a rule of law system in Sri Lanka.
The limitations on the power of courts were increased through a number of so-called public security laws. Within these laws, clauses were introduced which stated that a particular legal provision could not be questioned in a court of law. In 1972, this was clarified to mean that no action would lie, including writs, when such clauses were included within a legal text. The exceptions to this law were limited. As such, a number of emergency regulations have passed into legal use. Today, issues such as arbitrary arrest, detention and extrajudicial killings, among other issues, are outside the courts’ power due to provisions known as ouster clauses.
Ouster clauses were brought to the Constitution in relation to the previously discussed Article 35 (1) which regards the freedoms of the executive president while he is in office. As already mentioned, the actions and choices of the president, however illegal they may be, cannot be questioned in a court of law. In the Constitution, Justice Sharvananda attempted to justify this ouster clause by saying that such a provision is necessary to protect the dignity of the executive president. This assertion is entirely baseless; to be held accountable before the law does not deprive anyone of her or his dignity. Every citizen should be answerable to the legal system. Moreover, since there is dignity on the basis of equality, the law the law does not diminish dignity, but enhances it. Within a democracy, there should be no person who is entitled to exceptional legal privileges since the law is the sole king of the system. Therefore, this ouster clause which immunizes the president from any legal sanction, regardless of the illegality of his actions, cannot be justified on the basis of dignity, unless we understand the word ‘dignity’ in a feudal sense.
In a separate case of a land deal by former president Chandrika Bandaranaike, the court held that former presidents’ illegal actions could be questioned in court, and the former president could be subject to legal sanctions. However, when the legality of a current president’s actions cannot be questioned and sanctioned by a court of law, there remains a fault line in the understanding of democracy. Comparatively, in countries where there is a functioning rule of law system, state officials in positions of power have been investigated and prosecuted for acts of corruption. Indeed, such investigations and prosecutions often lead to the resignation of the officer and/or an annulment of the persons’ capacity to hold a position of high office in the future. In Sri Lanka, however, an act of corruption committed by the current president, no matter how grave, cannot be questioned in a court of law.
Moreover, anti-terrorism laws which were introduced in 1978 brought a number of activities by state officials outside the purview of the judicial system. As such, the intervention of the courts in preventing arbitrary arrest, illegal detention and extrajudicial killing was curtailed.
As a result of these actions over a period of time, the Sri Lankan courts today have significantly diminished powers and authority. The idea of a separation of principles, which gives equal power to the courts as it does to the Parliament and executive president, does not exist in Sri Lanka. The objectivity of the judicial system is distorted by interferences into judicial appointments by the president. This situation has led to great public dissatisfaction. The existence of an independent court system that has the power to intervene in situations – including those which involve the Parliament or the executive president – so as to protect the liberties of individuals, is at the heart of the protection implied by an effective rule of law system and functioning democracy. These protections do not exist in Sri Lanka to any extent that can be considered satisfactory.
Problem no. 5: The Vacuum Created by Public Institutions Exercising Democratic Authority Replaced by the Military, Paramilitary Forces and the Intelligence Services
Due to the impact of the 1972 and 1978 Constitutions the public institutions have been crippled in Sri Lanka. The vacuum that has been created by the absence of these public institutions is now being filled by the military, paramilitary forces and intelligence agencies. One needs to deal with these if the rule of law and democracy is to return to Sri Lanka.
As noted earlier, the process of dismantling public institutions came about due to the manner in which the various insurgencies in the south, north and east of the country have been dealt with in the last 40 years. The militarisation of Sri Lanka also happened during this period.
Today, the north and east are virtually under the direct control of the military authorities. A civilian policing system does not exist and the efforts that are being made for the reestablishment of the civilian policing system in these areas are still at a rudimentary stage. The vacuum that exists in the absence of a civilian policing system is mostly occupied by political groups that have been given permission to hold arms and control certain areas by themselves. The absence of a democratic process in the development of political parties and the fear that any space left for such democratic development would lead to the reemergence of the LTTE or similar organisations has resulted in an alliance between political and the government, where the political organizations are allowed to have their own systems of armed control in certain areas. The justification often given is that without the capacity to hold arms these political groups could not survive in these areas under the given circumstances which arose due to the prolonged civil conflict in these areas. The result has been that these problems have not been dealt with and the stability required for the functioning of democratic institutions has not been restored. Furthermore, the military exercises with the main function of rehabilitating these areas and the pervasive military presence which follows is considered an inevitable consequence of the present situation.
However, it is not only in the north and the east that the presence of the military is felt. The military has been brought into operation in all of the most recent political events such as demonstrations by the opposition and trade union activities where protests relating to livelihood struggles have been staged. The military is brought in on the orders of the Ministry of Defence and this can happen on a short notice if protestors placing various demands on the government are present. What is even more striking is the emergence of paramilitary forces such as the Special Task Force (STF). The creation of STF was a development that came about due to the insurgencies. The STF has taken over a number of tasks which earlier on belonged to the civilian police. Even the control of the highways has been assigned to the STF. The STF is also used when conducting searches and other activities which under normal circumstances would belong to the Criminal Investigation Division of the Sri Lankan Police. The STF is also visibly present during demonstrations where they carry out crowd control. Following the recent increase in the price of oil the STF was mobilised. The shooting and killing of Anthony Fernando, a protesting fisherman at Chilaw, is also attributed to the STF.
The STF is not without its critics. A commission appointed to investigate the situation of the police in 1995 found that the creation of the STF and its functions had a disturbing affect on the policing system. The commission, known as the Jayalath Commission, studied this issue and made several recommendations where it argued for a separation of the STF from the civilian policing system in order to remove the disturbances created by this new development.
Another troublesome aspect is the functioning of the intelligence services and the various activities they undertake. Their main task is investigating dissenters who express their dissatisfaction with the existing government. Intelligences services are basically engaged in the political function of investigating protests, the media agencies activities, the political parties of the opposition and especially those parties that can be linked to the poor and the marginalised groups of Sri Lanka. The Janathā Vimukthi Peramuna (JVP) as well as groups that have emerged from the JVP have been closely observed by the intelligence agencies for several years now. The intelligence services engage in observations of demonstrations and other political activities, where there has been no suspicion of crimes being committed.
The military, paramilitary forces and intelligence agencies today operate in areas where the police used to function. However, the main concern is not who has the mandate to solve crimes, but what happens when people undertake lawful political activities. The idea that a peaceful political activity could be carried out without the interference of any state agency is no longer a valid claim in the context of Sri Lanka. All political activities carried out by recognized political parties, trade unions or civil society are directly supervised by these agencies. Civil society organisations are often subjected to questioning by the intelligence agencies without being charged with any allegations of committing a crime. The intelligence agencies request that information should be given to them on a regular basis informing them about the activities of the civil society. There is an underlying assumption that any activity is necessarily subversive. The meaning of subversive is no longer related to the violation of any laws. Subversion means anything that could undermine the authority of the government in any manner.
The idea of an open society, the idea that any citizen can engage in a peaceful political activity as long as they operate within the legal framework of a country is something that is no longer valid in relation to Sri Lanka. Criticizing the government or discussing matters of public interest are now considered subversive. As such, anyone who engages in such activities or anyone who is suspected of being involved in such activities can be questioned and taken into custody. On several occasions the publishers of pamphlets have been asked to report to these agencies and questioned about their activities even though the pamphlet did not contain any material that could be considered a violation of the law.
In present day Sri Lanka, it is not possible to object to being questioned. People are expected to provide information and fully accounts for their activities. This has lead to a situation, where fear dominates and people comply with these demands for information, because they fear the rather unpleasant consequences that would come about if they denied providing information.
Problem no. 6: The Fear of Participation
Over the past few decades, the participation of the people in the political and social life of Sri Lanka has been curtailed. Since the 1977 elections and the electoral victory of the United National Party, the ideology spread by the ruling political party where the opposition is suppressed has narrowed the avenues for political participation.
About a month after the election, a period of violence ensued, during which people remarked that the police were away on holiday. Extreme forms of violence were committed against political opponents of the UNP across the country. This violence marked a shift in the political mentality, indicating that from now on single-party politics would be the only legitimate political system within the country. Efforts were made to isolate the leader of the Sri Lanka Freedom Party and ban her from participating in the elections.
This aspect of the ideology arose because the ruling party admired Singapore’s political system and attempted to copy the system to Sri Lanka. An overwhelming majority of the Parliament gave power to the ruling party which was free to create laws in whichever way they wished. This liberty was utilized unscrupulously so as to develop a political model that would ‘close the electoral map’, as described by then President Jayawardena.
‘The closing of the electoral map’ in effect meant imposing restrictions on opposition parties which limited their ability to conduct political activities with a view to oppose the existing government and overthrowing the government in question. This broke with the premise under which the constitution of Sri Lanka at its independence was formulated. An open political space for the opposition was one of the basic premises of the system and it was this system that was under fire. It was argued that this kind of political system was not suitable for the economical development of Sri Lanka, because the plans of one government was changed at every election and therefore there was no continuity in the economic models and they did not have adequate time to be developed.
The free election model was openly challenged and unfortunately the elite sections of Sri Lanka and quite a large proportion of the Sri Lankan intelligentsia at the time supported this ideology. There was hardly any opposition to any of the moves of the UNP regime including the policy of extending the life of the parliament by way of a referendum for another term in office. The breakdown of the opposition during the time was so pervasive that even this move was successfully implemented in Sri Lanka. The extension of the lifetime of the parliament was required for the single reason that the ruling party wanted to keep the overwhelming majority in parliament alive. It was quite certain that there would not have been a status quo had there been an election for a new parliament in 1982. This overwhelming majority in parliament was and is still required for the executive president to be able to legislate. The major reason for the repression unleashed upon the opposition parties was the perceived need for the ruling party and its president to be able to legislate unhindered. This fact remains even with the change in government. This was also the main reason behind the resistance towards developing opposition parties in Sri Lanka. The repression that was carried out by the UNP is now being carried out by its former victim the Sri Lanka Freedom Party, which at present is the leading party of the coalition. The victim under the UNP government learned all the tricks of their oppressor and now practices the same policies with an even greater expertise than was seen in the past. The result is the loss of an effective opposition and the absence of any kind of debate on vital national issues. The period from 1978 an onwards has been marked by a lack of a serious public debate on matters affecting the country.
The attempt to develop a one-party model was further strengthened by the civil conflict that developed between the Sri Lankan government and the militant groups in the north and east with LTTE in a leading role. What has not been assessed in my opinion is the extent to which the incumbent president at the time engaged in provocative action in order to spark unrest in the periphery (north and east) with the aim of suppressing political debate in the center (Colombo). Due to the persistent and intensifying military conflict, it was possible to divert the attention of the people away from the enormous transformation that was taking place in the overall political structure of the country. From the very beginning of the conflict, the incumbent president acted in a provocative manner in order to intensify conflict as much as possible. In 1978, he delivered a provocative speech which led to attacks on Tamil establishments in Colombo and in other areas. Even the 1983 racial riots were the result of the president’s deliberate provocations. This is unsettling considering the fact that the president was in a position, where he could curb the riots. The president was warned in the morning of the day when the riots took place. He was advised not to allow the funerals of 13 soldiers who were killed in Colombo, because it might spark riots. The president promised to do so, but he made no attempt to stop the funerals. Researchers have also shown that the program of 1983 was carried out in a manner which suggests that it was planned. An example of this would be the electoral lists which were being used to identify houses that were attacked. This is just to show that promoting tension in the south was a deliberate strategy followed in order to entrench a one party political system, where one man was in control and there would be no opposition.
Problem no. 7: The Disappearing Power of the Public Authorities
The well-known British jurist Tom Bingham in his famous book “Rule of Law” summed up the basic principles of the rule of law thus “the core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefits of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.
The very first principle is that people and authorities within the state should be bound by and entitled to the benefits of publicly made laws. In terms of Sri Lanka, this issue of authorities being bound by publicly made laws is quite problematic. A person can only be bound by the law if there is a power present capable of holding the person in question responsible.
At all levels of government there needs to be people with power and capacity that are able to comprehend the multitude of problems that occur within a country. These authorities should also have power vested in them by the law to be able to make necessary decisions. In the decision-making process there should be no interferences, which prevent the authorities from carrying out their duties. The idea of supervision or ‘command responsibility’ does not imply a direct control with each and every individual who holds office and it does not imply that the authority is prevented from taking the necessary steps needed in order to cope with the problems they face.
What has happened under the 1978 constitution is that all decisions made by the authorities have come under the direct political control of the executive president. The result of this exercise of political authority over the various institutions has been that the institutions have learnt that they do not have independent power to make decisions and solve problems on their own. They have learnt to wait for orders. This mentality of fearfulness when dealing with the responsibilities that have been entrusted upon you has caused a paralysis in the institutions of Sri Lanka. This paralysis is also present in the police department and in other important agencies, including the attorney general’s department. It is also present in the civil service, in the election commissioner’s office and in all other public authorities. The people are frustrated, but these frustrations cannot be resolved until the system imposed in the 1978 constitution is abolished in Sri Lanka.
The problem of creating functioning public institutions without political interference was the central issue when the 17th amendment to constitution was passed. In 2001, this amendment was implemented nearly unanimously with only 1 or 2 people opposing the amendment. What the amendment proposed to do was to create a constitutional council and not to leave the power of appointing members to council solely in the hands of the executive president. It was thought that the participation of all political parties is a necessary requirement to ensure that these high profile appointments were based on merit rather than on political affiliation. Thus, the central concern of the 17th amendment was to exclude political considerations from the process of appointing public officials. If a person is to act in accordance with the law, then it is necessary that decisions are made in accordance with objective principles and not because of political considerations. Thus, an attempt was made to ensure that there were at least some measures of control in the appointments, transfers, promotions and dismissals of public servants in several of the most important public institutions in Sri Lanka. This was done by making sure that the appointments came from the members of the constitutional council who enjoyed the confidence of the people.
The members of the constitutional council have the duty to appoint the chief officers for the police, the election commissioner’s office including election commissioner himself, the civil service, and several other appointments for important public institutions. After the amendment was passed, there was a short period when this amendment was put into effect. And the results of this amendment were improvements in these institutions, including the police and the election commissioner’s office. However, regarding the election commissioner’s office, this amendment was not put into full effect as the commissioner for the election commissioner’s office was not appointed in the manner required by the amendment. Despite the amendment, the situation remained the same. The most remarkable changes happened in the police department, which earlier on had been severely criticized. Due to new leadership, a number of important improvements were made within this department. However, these changes had an effect on the political schemes, particularly in relation to the elections. The ruling regime was able to interfere in police matters by placing government friendly officers in charge. The result was a situation in which the functioning of 17th amendment was hampered and in the end the refusal to appoint a constitutional council meant that the amendment became ineffective. The passing of 18th amendment of the constitution marked the end of the changes brought about by the 17th amendment, because the new amendment deliberately attempted to stamp out these changes.
Thus, the issue of politicization of public services makes its return, now with the blessing of the new amendment and a certainty that things are unlikely to change in the near future. With the new amendment it is unlikely that public authorities will act in accordance with the law. It has become the norm that the authorities act in accordance with political directives. At present, public institutions are mainly carrying out political orders and not functioning in accordance with the basic norms of the rule of law. Until this changes, there will not be a functioning rule of law system in Sri Lanka.
Problem no. 8: Selective Investigations into Crimes
That all crimes should be investigated by competent criminal justice authorities who are bound by law and are answerable to the courts is the foundation of a modern criminal justice system Sri Lanka’s penal code, criminal procedure code and other laws relating to criminal justice are based on this basic premise. However, one can no longer claim that this basic premise is being observed in Sri Lanka. Today, criminal investigations are selective and sabotaged in thousands of ways with the approval of the political authorities. It can be shown that none of the basic premises of a credible criminal justice system are practiced any longer in Sri Lanka. Without these basic premises the criminal justice system is not a credible system. The control of crime is the medium through which a basic order is maintained in a society and when this system of control is under threat then individuals are also threatened.
One needs only to list a number of well known cases where there have been no credible investigation to demonstrate how the system of criminal justice is being threatened in Sri Lanka. Unfortunately, the number of uninvestigated crimes in Sri Lanka can be counted in tens of thousands. Regardless of the political justifications put forward in order to explain why crimes are not investigated, it cannot be disputed that a society which does not investigate crimes will cease to be an organized unit.
Sri Lanka refuses to recognize forced disappearances as a crime. Numerous testimonies attest that forced disappearances involve being abducted, illegally being detained, being tortured, being assassinated and finally disposing of the bodies in a secret fashion. UN authorities such as the UN working group urged Sri Lanka to criminalize disappearances take effective action in order to eliminate disappearances all together. The state has refused to act on this issue. This is not an issue where a state can dismiss taking effective action. Nonetheless, the Sri Lankan state maintains that it will not investigate forced disappearances and will not criminalize forced disappearances. Without appropriate legislation it will not be possible for any criminal justice authority to investigate such crimes. Criminal investigations begin with the recognition that something is a crime in accordance with the definition of the crime in the statute book. If an offence is not recognized as a crime, then there can be no investigation of the crime. Even in a case where 31 children were abducted, killed and disposed of in Ambilipiti, there was no investigation despite massive pressure from the public. The disappearances where only investigated as abductions. There is a vast difference between being abducted and forceful disappearances.
Even when a crime is recognized in the statute book, investigations are selective. The case of Lasantha Wickramatunge is no exception. Investigations only happen when the person is well known. There are tens of thousands of cases where there have been crimes committed, but no investigations. How can we speak of the rule of law in Sri Lanka when there is no system that guarantees that all crimes are investigated?
The number of rapes reported in 2011 alone is 1350. How many of these cases were investigated? Not even a handful. How many of these cases have led to filing of charges and led to a trial process? Not more than a handful. How many of these cases have led to convictions? Since the cases are from 2011 it might be too early to tell. Yet, if the crime of rape is not investigated and the guilty prosecuted, how can we expect that lesser crimes will receive a better treatment?
The conviction rate for crimes committed in Sri Lanka is 4 percent. This is an official figure confirmed by the government. Most crimes are not investigated and among those which are investigated only 4 percent of the cases are successfully prosecuted.
The reason why crimes which are brought before the courts have such a low conviction rate is often because of the delay in the trial process. There was a time when jury trials were compulsory in cases where serious crimes had been committed and in those instances the trial process took place without any interruptions. Thus, within a few days or a week, the trial would be over. That is no longer the case. When a case is brought before a high court, some evidence is recorded and then the case is postponed for a few months. In this manner, a case can go on for years. There are cases in which a number of judges have heard the case by the time it reaches its conclusion. Thus, there are hardly any cases that are heard from the beginning to end by one trial judge. Only in special cases, where there has been public pressure is a case heard by one judged. In many cases, the judgments are made based on the reading of records by a judge who has not heard or seen most of the witnesses. Why this is so scandalous became obvious in the of case Lalith Rajapakse where the trial went on for several years. When the judgment was written, the judge wrote that the witness had not produced any medical evidence of a foot injury although it was mentioned in the evidence that his feet were beaten. Moreover, besides the evidence there was also a medical report which clearly marked injuries on feet and a medical officer gave evidence at length on the sustained injuries, stating that the injuries could not have been brought about by any other means besides the use of blunt instrument. The medical officer ruled out the possibility that the injuries could be caused by an accidental fall as suggested by the defence. Despite abundant evidence on record, the judge stated that there was no evidence on record. Such scandalous neglect is possible because a case is heard by several judges and the judgment is written by the judge who takes on the case at the very end and who has not seen or heard the testimonies of most witnesses.
Defects in the trial processes can be illustrated in great detail. However, given the limited time only one additional defect will be noted. In an overwhelmingly large number of cases, the accused against whom charges are brought is merely a person who has been randomly selected, rather than the true culprit found through credible investigations. The habit of randomly selecting an accused and fabricating charges happens so frequently that if one were to examine the situation closely, one would find that the entire justice system has failed.
Having demonstrated that the manner in which criminal investigations and criminal trials are carried out is deeply flawed, how can we claim that there exists a rule of law system in Sri Lanka?
Problem no. 9: A State of Confusion about essentials
When Sri Lanka regained independence its status as a nation state was defined in terms of rule of law and democracy. Interestingly, in 1931 when adult franchise was introduced to Sri Lanka the notions of rule of law and democracy were well established principles in the country. The notion of adult franchise is based on equality and the working of a system of governance based on elections by every eligible voter in a country in accordance with the rule of law. Thus the founding of Sri Lanka as an independent nation was based on the acceptance of the notions of the rule of law as well as democracy.
During the first decades after independence the system of governance was also based on these same principles. Sri Lanka’s court system was independent and the administration of law was based on the acceptance of the principles of the rule of law. The law was well defined, clear and predictable. The courts dealt with the problems of the citizens as the final arbiter when disputes arose. All officers of the state from the Prime Minister down to the civil service had to act on the basis of law and the task of each officer was clearly outlined in accordance with the law. To violate the law or to abuse the law was punishable. These were common notions which were agreed upon and which were known to everyone.
However, since 1972 and particularly after the 1978 Constitution this order changed. As described earlier in this speech people no longer have a clear idea on what constitutes the rule of law. It has been replaced by ‘law and peace’ which simply means that whatever a government will follow any policy deemed necessary in the pursuit of peace and these decisions will have a binding effect. Not only the citizens but also the law enforcement agencies and the courts are bound by these policy decisions, which more often than not come from a single source – the president himself.
The present situations is quite different from what was written in the founding document when Sri Lanka became an independent nation. The result is a state of confusion that affects every aspect of social life. A citizen is not in a position to know what might be the outcome of any decision he makes with regards to his own life. Anything and everything can be changed depending on the wishes of the government and there is no legal safeguard shielding the individual from the government whims.
An individual that seeks justice can no longer predict the outcome of his search on the basis of known principles based on law. He simply has to calculate and is often not in a position to know what a police officer or a judge might do and even if everything goes well according to the law, what the executive might do. For example, a citizen who is pursuing a claim against another citizen relating to a murder may find that the case against the accused is withdrawn by the Attorney General’s Department due to pressure from above. Or even when the court of law makes an order to convict a prisoner on a serious crime such as murder, within no time a victim may discover that the president has decided to pardon the person purely based on political considerations and not in accordance with the principles on which such pardons are usually given in a rule of law system.
A person who wishes to start a business may find that he has a rival who is supported by powerful politicians and therefore he will not be able to start the business even though he has the means to do so.
A father who is trying to bring up his children and wants to avoid that the children fall prey to drugs may find that there is a powerful mafia in the neighbourhood dealing drugs and that he is simply powerless and not able to protect his children. If he puts his faith in the law and takes action to stop this mafia he will be abducted, or his children will be abducted. He is powerless and unable to stop the criminal activities.
Going into more complicated matters such as the relationship between one community and another, one face and another, one religion and another the same kind of unpredictability prevails everywhere. Despite talk of minority rights there is no legal avenue which makes these rights attainable. In the political power game the wishes of the majority may matter more than the wishes of the minority. Thus, the rights discourse, whether it relates to minority rights or others rights, is of little consequence.
The forums in which the rights discourse takes place have lost their importance and the discourse is without any kind of real consequence. In a court of law the court may decide that the fundamental rights of a person are being violated by a particular officer or group of officers, but these officers will still be promoted. To illustrate: a lieutenant in the army was severely beaten up by his senior officers and despite the fact that a court martial found them guilty they were promoted and prospered within the army, while the injured officer was declared invalid because of his injuries and lost his livelihood. This takes place not only within the army, but also affects the lives of civilians.
If the Supreme court determines that a victim has been tortured by police officers it might have fatal consequences for the victim. Often arrangements are made where the victim will be assassinated. These are not exceptional cases, but the normal course of things. The machinery which seeks to correct these faults is without consequence.
In a situation where unpredictability prevails, who cares about crime, including war crimes? Society does not understand what a crime is or that a crime can be so grave that it is known as war crimes under international law. The government follows a simple logic; the government justifies its actions by saying it has achieved peace and that is not a crime. What is done in the name of ‘development’ or ‘peace’ cannot be a crime. This is the underlying assumption prevalent in the public debate in the country.
A threat to private property
The situation that has now developed in Sri Lanka threatens the right to private property. Those who hold power and those who take cover under such power can use the situation of insecurity to acquire the properties of others and there is no legal consequence for such acquisitions. This is happening in many ways. In some instances, one party involved in a property dispute uses security forces to their advantage and even abducts their opponents. In some instances, there have been forced disappearances, purely for property purposes. This is also happening on a much larger scale in the North and East. Tamils who have left their properties due to the conflict now are deprived of their property in many instances. There are reports of large scale acquisitions of the properties that belong to the Tamils in these areas, and the allocation of their properties either to corporations or to private individuals. In the situation of displacement, the issue of legal protection for property virtually does not exist, and this situation can be unscrupulously utilized for large scale deprivation of property.
Therefore, what has happened is not just some aberration of accepted principles but the abandonment of the principles altogether. The principles on which the nation state of Sri Lanka was founded when it became independent have lost all meaning in present day Sri Lanka. Sri Lanka is at present in a state of confusion that affects all citizens from all communities.
Problem no 10: Equality, Accountability and Reconciliation
The following is a quote from BR Ambedkar, the undisputed leader of the Dalit liberation movement, which may be relevant here with regard to the question of equality:
“Any objection to equality? This has obviously been the most contentious part of the slogan of the French Revolution. The objections to equality may be sound and one may have to admit that all men are not equal. But what of that? Equality may be a fiction but nonetheless one must accept it as the governing principle. A man’s power is dependent upon:
1. Physical heredity
2. Social inheritance or endowment in the form of parental care, education, accumulation of scientific knowledge, everything which enables him to be more efficient than the savage
3. His own efforts.
In all these three aspects, men are undoubtedly unequal. But the question is, shall we treat them as unequal because they are unequal? This is a question which the opponents of equality must answer.
From the standpoint of the individualists, it may be just to treat men unequally so far as their efforts are unequal. It may be desirable to give as much incentive as possible to full development of everyone’s powers. But what would happen if men were treated unequally as they are in the first two aspects? It is obvious that those individuals also in whose favor there is birth, education, family name, business connections and inherited wealth would be selected in the race. But selection under such circumstances would not be selection of the able. It would be the selection of the privileged. The reason therefore, which forces that in the third aspect we should treat men unequally demand that in the first place, in the first two aspects, we should treat men as equally as possible.
On the other hand, it can be urged that if it is good for the social body to get the most out of its members, it can get most out of them only by making them equal as far as possible at the very start of the race. That is one reason why we cannot escape equality. But there is another reason why we must accept equality. A statesman is concerned with vast numbers of people. He has neither the time nor the knowledge to draw fine distinctions and to treat each equally, i.e. according to the need or according to capacity. However desirable or reasonable an equitable treatment of men may be, humanity is not capable of assortment and classification. The statement therefore, must follow some rough and ready rule, and that rough and ready rile is to treat all men alike, not because they are all alike but because assortment and classification is impossible. The doctrine of equality is glaringly fallacious but taking all into account, it is the only way a statement can proceed in politics which is severely practical affair and demands a severely practical test.”
BR Ambedkar, Annihilation of Caste, 1937
In Sri Lanka’s constitution adopted after independence, the principle of equality was accepted. The latter constitution did not abrogate the principle of equality, but its structure created an arbitrariness that made the creation of basic rules for equality extremely difficult if not impossible. My contention is that the executive presidential system as envisaged in the 1978 constitution and the operation of the principle of equality are incompatible.
For equality to have any meaning in a country it will have to operate only on the principle of equality before the law. The question of equality before the law requires that there is a clarity about what the law is. As described earlier, under the present constitution the law is no longer clear nor predictable. The law entirely depends on whatever is the executive requires in order to secure development or peace. Thus, administrative necessity becomes the law. Under these circumstances, the principle of equality has become meaningless. This is proven by the operation of the constitution of 1978, where inequality has become the order of the day. This inequality is the result of a politicization. The concept of merit has lost its relevance and when considerations of merit based on objective criteria are ruled out, then it becomes impossible to develop conceptions of equality before the law.
The same applies to the issue of accountability. Where impunity is granted for political reasons and is reflected in every aspect of the behavior of the officers of the state, the question of accountability becomes hugely relevant. Accountability requires the basic operation of the rule of law. Accountability also requires the authority of the judiciary over the executive on matters which are deemed juridical. When this is no longer the case and every aspect of life is determined by a system of direct orders from the executive, the question of accountability becomes impractical.
This trend is further strengthened by the displacement of the obligatory investigations into crimes and violations of rights. Such investigations are imperative if the rule of law is to operate. However, under the rule of the executive investigations do not happen and the investigators themselves are disbanded or disallowed from doing investigations even if they wanted to. Thus, the investigator is powerless even if she or he wished to carry out the investigation. In due course, the will to investigate will disappear all together. When the will to investigate disappears in institutions that are supposed to investigate crimes and violations of rights, then there cannot be accountability.
Accountability also depends on a clear definition of crimes. Whether these are crimes within the ordinary law of the country or international law, such as war crimes, crimes need to be recognized and defined and accepted as such if they are to remain valid for a particular society. When there is no clarity about crimes and where certain crimes are not recognized as crimes, the possibility of accountability does not exist. Such is the situation in Sri Lanka in terms of the operation of emergency, anti-terrorism laws and a large amount of direct orders from the executive.
Thus, where there is no equality, there can be no accountability and no equality before the law. If there is no accountability, what basis is there for reconciliation? As described earlier, when there is confusion about the basic values, when the social order is marked by confusion and when former values are replaced by their opposites, the possibility of reconciliation is non existing. That is the situation in Sri Lanka today.
The issues relating to the equality of opportunity such as issues relating to language, education and employment can only be realised within a legal framework which incorporates the principle of equality before the law. Thus, the denial of the equality of opportunity can only be resolved within a constitutional and legal framework which is based on the rule of law. As shown above Sri Lanka’s current constitution is incompatible with the notions of the rule of law. The solving of this problem is essential if one wants to find any real solution to the issues relating to the ethnic conflict.
The discussions on devolution or the making of arrangements for power sharing cannot be achieved without including the issue of the constitution which affects the entire nation state. It is not possible to achieve democracy and rule of law in the periphery of a country when the centre itself is not constructed on the basis of the principles of rule of law and democracy.
The transformation of Sri Lanka into an authoritarian political structure and the intensification of violence due to the ethnic issue is not a coincidence. It is causally connected. Without removing the constitutional foundation of authoritarianism the causes of violence in Sri Lanka on the ethnic front cannot be removed. One of the illusions of the last few decades was the belief that the executive president functioning under the 1978 constitutional model could better resolve the problems relating to the ethnic issue than a democratic government rooted on the basis of the rule of law. This illusion needs to be removed if the Sinhala and Tamil communities are to share a harmonious relationship based on mutual respect for each other’s rights.
The virtual disappearance of North and East from the legal sphere
When people were returning on a large scale after the last stages of the battle between the LTTE and the military, they went into refugee camps. At this stage, the then-Chief Justice of Sri Lanka stated that the courts have no jurisdiction over these persons. They were persons who were placed outside the normal legal structure and the court’s authority. Even after the return of many of those persons, their situation has not changed into persons having a legal status in Sri Lanka. Having a legal status presupposes the existence of normal civilian and judicial authorities having the control over these areas and being able to function in the manner required by the law. This implies the establishment of civilian policing and facilities for the functioning of the courts. There has been no significant improvement relating to the development of the administration of justice in these areas.
In Sri Lanka as a whole, the policing and judicial system has suffered enormous setbacks since the adoption of the 1978 constitution, as mentioned earlier. However, when it comes to the areas in the North and East, the situation is much worse. People are still victims of various political groups who have established their authority due to the patronage granted to them by the government. The allegation that they continue to hold arms and use that position to intimidate others has been therefrom the beginning of this situation. These groups do not allow any kind of political competition by others. Also, on the other hand, there is heavy military presence which exercises an intimidating ethos.
Factors that May Contribute to the Development of the Rule of Law and Democracy in Sri Lanka
Perhaps the most important factor that may contribute to the development of the rule of law and democracy in Sri Lanka is the bitter experience of the many violations people have suffered – particularly in the last 40 years in Sri Lanka.
The last 40 years has been one of the most violent periods in the south, north and east of Sri Lanka. The way the state power has been exercised during times of crisis is very much a part of the Sri Lankan experience. The use of force without limits, arrests, detentions, extrajudicial killings, forced disappearances, torture and multiple other methods of depriving people of their liberty and their freedom is a part of the local experience.
What has given rise to many of the developments related to the rule of law has been the brutal use of force by the state throughout history in a number of different countries. The history of the rule of law is in fact written in blood. It is the gradual movement starting with protests against the abuse of power, which led to various kinds of reflection on law and politics and culminated with the formation of the system for the rule of law as we know it today.
Many of the basic principles enshrined in the rule of law are principles of freedom written in negative form. For example, freedom against illegal arrest is the way personal freedom was articulated in England, which is clearly expressed in the writings of the time.
The manner in which law was introduced into Sri Lanka in the 19th and 20th centuries happened when ideas and legal texts from other countries spread to Sri Lanka and on the initiative of the colonial powers which were ruling Sri Lanka. These laws which were introduced to Sri Lanka were developed in other countries that did not share the same historical experiences as the Sri Lankans. Perhaps that was part of the reason why many of the principles of constitutional and criminal law that were introduced to Sri Lanka were not understood or appreciated by local intellectuals, including members of the legal profession.
Perhaps, the time has come where we will have to rethink these laws, with the aim of resolving the current problems. The local intellectuals may wish to contemplate on ways to stop forced disappearances, illegal arrests and detention and the political interferences that prevent the exercise of freedom by the people and the running of their government. Thus, the solutions to the problems of law in Sri Lanka, particularly in the field of criminal and constitutional law, cannot be found by borrowing ideas from the outside. Solutions can only be found if one reflects on how the people have been deprived of freedom and how people have suffered. This moment in history present a window of opportunity, where local intellectuals have the power to create a functioning rule of law system and secure democracy for the people. If law can be written in this way, then there will be resistance when the law is tampered with and those in power begin to abuse the legal process. This resistance is a must if a living system of law is to prevail in our country.
The Diaspora;Exposure to Countries with a Functioning Rule of Law System
At present, the number of people who have been exposed to a functioning legal system far outnumbers that of the past. These Sri Lankans have for various reasons taken residence in other countries for longer periods of time. Their experiences with a functioning legal system are shared with fellow countrymen in conversations and through other forms of communication.
Today, a large body of Sri Lankans live outside the country and are often referred to as the diaspora. All groups in Sri Lankan society are represented in the diaspora and many of them have had the benefit of living in a country where a legal system has provided them with protection at a time when their own country was not able to secure their freedom and security. The members of the diaspora often spend many years in their host countries and become integrated in the host society. They are in a better position to understand the inner workings of a functioning legal system, since they have lived under such a system. They gather an enormous amount of knowledge just by living there. The diaspora might be able to fill the vacuum that exists in Sri Lanka and they might be able to help in overcoming ignorance with regards to how the rule of law system operates. Thus, the diaspora has a body of knowledge which, if properly communicated, could be immensely useful to Sri Lanka.
The diaspora also have the freedom to express their ideas in a freer fashion than those living in Sri Lanka. If this freedom is utilized with determination, much of the knowledge they gain outside can be transferred back to Sri Lanka, thereby improving the quality of the public debate within the country. Sadly, one of the worst aspects of Sri Lankan life today is the poor quality of communication. This depressing fact is worsened by extensive use of propaganda techniques. The propaganda lowers the quality of the debate in a terrifying manner. The propaganda is spread by those who stand to benefit from the propaganda. There is a contest between those who want to enlighten population with proper discourse and those who want to dampen the discussion by using propaganda. But the diaspora can play a role in securing a better public discourse. The harassment and intimidation which takes place might prove unsuccessful if those who are not directly involved take the trouble of expressing their ideas in a more forthright manner and with honesty.
The communication system of today provides facilities which previously were not available. Access to these different types of communication is especially good for the diaspora. If these facilities are utilized effectively, the local debate would improve, local knowledge would be improved and local protests and the determination to seek a change would also increase.
The Improved Education of the Population
The present generation of Sri Lankans is perhaps the most educated generation in the history of Sri Lanka. For a long time, education was confined to the elite sections of society and constrained by the use of English only. However, free education is now available in the remotest corners of the country, and today there are educated people throughout the country. The communication facilities enhance this education and give them an access to the outside world that is unprecedented. Thus, the improved level of education if properly enhanced and assisted might lead to a better understanding of the way the systems work and allow the people to shape the conditions under which they live in order to enhance their own liberty and happiness. Today, the population is capable of participating in a much more extensive manner. What is needed are more platforms where people can meet and debate on the issues relating to their wellbeing. Thus, improved education will pave the way towards a more participatory society, where people are able to shape their own legal systems and their systems of governance through democratic institutions.
