(This article initially appeared in the Sri Lanka guardian and was written as a response to a discussion in Ground Views)
Basil Fernando
The concept of the gulag, first used by Aleksandr Solzhenisyn it in the Gulag Archipelago 1918 1956, has come to mean a particular system of repression imposed on a whole country, and which has some definite characteristics.
In an earlier article, I described these characteristics as:
The loss of the meaning of legality within a particular country;
A predominant position played by the security apparatus;
The emergence of a propaganda apparatus that is not bound by any rules relating to truth or falsehood;
The emergence of a superman controller who manipulates all the three elements mentioned above in any way that he wishes;
A doomed citizenry reduced to zero status;
The position on which this article is based is that Sri Lanka is now such a gulag. All the above mentioned characteristics are now quite prominently visible within Sri Lanka. However, a phantom limb disorder still continues to exist. The people wish to believe that the old legal system and social system are still intact despite some unhappy new aspects that cannot be denied.
The loss of the meaning of what is legality and illegality
A usual question asked in any society is whether somebody can do this or that. Normally when such a question is asked, it is to inquire whether this or that can be done legally. For example, can somebody be shot after arrest? The question asks whether any person can be legally authorised to do such an act. Hundreds of such questions may be asked each day on various other subjects. Let us narrate some frequently asked questions.
Can somebody be assassinated merely because he is a journalist? Can somebody be put under detention orders because he wrote one or two passages that someone in power might not like, or because he carried some pictures of atrocities to be shown at a meeting? Can a ballot box be filled with votes that are not placed in it by people in the normal process of voting? Can the official website of a ministry label some people as traitors because they may have done something that the particular ministry does not like? Can somebody be arrested on the basis of a fictitious charge? Can a government ministry refuse the auditors permission to look into their accounts? Can a report of a parliamentary committee on corruption and its recommendations be completely ignored?
Can any government authority stop a criminal investigation? Can any powerful person in government give direct or indirect orders to judges? Can the police decide not to do any investigations into the complaints regarding opponents of the government? Can a local parliamentarian give orders either to release people or arrest people simply because he wanted it that way? Can the police or the military shoot anyone simply because he is identified as an underground element?
Can a judge make a judicial order without following due process and procedural obligations? Can the head of the state decide not to implement the constitution? Can the police or any other law enforcement authority use illicit drugs or liquor that they have confiscated either for purposes of making private profit or to give as gifts? Can public documents maintained by the authorities be altered or falsified as anyone would wish? Can bombs or other firearms be utilised to attack political opponents and these attacks be attributed to terrorists?
Can people who are displaced be kept in camps and deprived of the right to return to their homes? Can people be taken out of the camps of Internally Displaced Persons without leaving any trace of their removal from the camp? Can the government allow the abduction of persons to take place for ransom or for any other reason?
The answer to all these questions will depend on whether there is a criterion based on legality. If this criterion is accepted, then one can look into the law and give a reply to the question that has been raised. However, if there is no such criterion about legality the only answer to any of these questions is, yes, anything can be done.
In this way the question of legality disappears. It becomes irrelevant to find out what is really stated in a valid law.
The desire of people to have a legal explanation can be placated by an artificial creation of special laws, such as emergency laws, anti-terrorism laws and other similar laws which suspends the normal framework of the law that existed before. The previous system of law are suspended by these laws. That very suspension is called a law.
Now in Sri Lanka whether a particular act is legal or illegal has become virtually irrelevant. At the inquest of the incident of the murder of the two Angulana boys, it was revealed that at that police station, a sweeper was paid in the evenings with packets of heroin. Was that illegal? No criminal inquiry was made into this revelation and naturally no one has been arrested and prosecuted for it. Thus, the question of legality or illegality about the issue is just irrelevant.
Was it illegal to kill Lasantha Wickramatunga? Despite of local and international outrage and pressure, hardly any credible inquiry was conducted into the matter and no prosecution has been undertaken about this murder. Is there any relevance at all of discussing the legality or illegality of a murder when no action on the part of the state is expected as a response to such murders? Whether the action is legal or otherwise, the reaction of the state is inaction and such inaction is a matter of an undeclared but quite evident policy.
The factors that have made the law irrelevant in Sri Lanka
a. The Constitution of 1978: This constitution was meant to create a leader who is above the law. With that creation, the rule of law simply cannot survive. Enough has been written on this issue. In my book, Recovering the authority of public institutions this aspect has been dealt with at length. This book is available at: http://www.ahrchk.net/pub/mainfile.php/books/318/
b. The suspension of much of the criminal procedure law by anti-terrorism laws and emergency laws: All that used to be the law of the country in relation to arrest, detention and fair trial has been suspended. Now people can be arrested, detained and punished without trial, without any recourse to the protection that was inbuilt into the Criminal Procedure Code of Sri Lanka. By the suspension of such protection, abductions, disappearances, torture and abuse while in detention, and all kind of abuse relating to those who are arrested and their families, and many forms of extortion relating to arrest and detention, have become a common affair. There is nothing that can practically be done to stop any of the kinds of abuse of the process.
c. The emergence of a security apparatus that is above the law: The so-called law that they act within is the Emergency Law and Anti-Terrorism Law, which simply means the suspension of all safeguards of the citizens. Very little of what is done by this security apparatus is transparent. In fact, this apparatus can act with unlimited secrecy. The pretext is always that for reasons of national security such secrecy is necessary. What they do cannot be challenged on the basis of legality of these acts.
d. The disempowerment of judiciary and the undermining of judicial power: Due to the factors mentioned about, particularly the enlargement of executive power through the 1978 Constitution, the very conceptual basis of judicial independence has been displaced. In the early years of the operation of the constitution, there were still mindsets formed in earlier times among judges, lawyers and citizens, which acted as a buffer against the full impact of the constitution being felt on the judiciary. However, after 31 years of the operation of this constitutional order, such resistance has greatly diminished. The system has gotten adjusted to the presidents absolute power.
e. The virtual collapse of all public institutions: This is primarily a consequence of the operation of the 1978 Constitution, in which absolute power was placed in the hands of the Executive President. The law, when it exists, operates through the public institutions. When these institutions are no longer capable of exercising their regulatory and supervisory capacity, any of these institutions can be utilised without regard to the law. This means all kinds of corruption with regard to tenders, purchases, and even the ways of keeping accounts. There is nothing sacrosanct about any of the practices that these institutions are expected to perform. The citizen who goes before these institutions does not know what to expect.
It also means that when it comes to recruitment, promotion, transfers and disciplinary actions, there is no criterion placed on merit, and various types of undue influences and politicisation creeps into the system. Under such circumstances no one with any common sense would insist that the law or regulations have to be followed.
f. Disregard of the duty to investigate crime: Under the normal criminal procedure it was an obligation to investigate all crimes, and the methods of investigation were standardised. However, now there is no such obligation to investigate crimes. And where investigations are carried out, they are done so manipulatively. If someone desired to destroy another person, (for example, having them imprisoned in order to destroy their career) completely bogus inquiries can be carried out in the most fraudulent manner. The victim is quite helpless under these circumstances. Thus, the criminal investigation process ceases to be a mode of maintaining law and order, and becomes a mode of abuse of power.
g. Harsh repercussions on complainants and witnesses and the resultant fear psychosis: Within a rule of law framework those who have grievances are encouraged to come forward and are protected when they make their complaints. However, under the present circumstances those who complain about the abuse of power run the risk of threats to their lives. The consequence of these repercussions on complainants is the creation of a paralysing fear psychosis. Such fear spreads into every grain of sand.
Conclusion
Thus, the result of this total situation is that it becomes senseless to ask whether something is legal or illegal. What is illegal under the normal law takes place all the time and there is nothing anyone can do about it. If someone wants to insist on the implementation of the law, he or she undertakes an impossible task that will bring more adverse consequences that positive ones.
