The kinds of punishments that are meted out in Sri Lanka today are not based on the making of distinctions between guilt and innocence. Within any system of criminal justice making distinctions on guilt and innocence is at the very core of the principles and practices. Penal laws, criminal procedures and evidence laws have all been developed in order to be able to make this distinction in an authentic and acceptable manner.
However, in the contemporary situation this distinction is abandoned. Punishing the innocent on the one hand and letting the guilty go free is not considered uncivilized or as deviating from the basic principles and norms of morality and law.
This may be illustrated with three different situations:
- The killing of people under arrest by the police or other agents, thus abandoning fair trial where only the judge, after following due process, can pronounce someone guilty and thereby prevent anyone not so pronounced from being punished.
- Forced disappearances where abductions take the place of arrest and where people are disposed of even without the keeping of any records. Here to, the question of guilt is not a primary element which determines punishment.
- The failure to make the distinction between ‘terrorists’ and ‘civilians’. Here to, the question of guilt or innocence is not considered as a relevant factor for punishment.
The killing of people under arrest
Every week reports appear about persons who have been killed while in police custody. The usual story is that the arrested persons attempted to attack the police while they were being taken to some spot to point out some evidential material and the police in self defence shot them dead; or that the arrestee committed suicide while in police custody. Recently the spokesman for the Sri Lankan police service was questioned by the BBC Sinhala Service as to how three persons, who were handcuffed, were able to snatch a gun to attack a policeman, as was reported. The police spokesman replied that these three persons were criminal suspects of a child murder. Can’t the criminals, he said, who could go to the extent of killing a child, do anything at all, thereby implying that such people can use guns even when handcuffed. The answer was meant to trivialise the killing and to create some sort of sinister humour about the episode of their murder.
On another occasion when, again the same news service questioned the same spokesman about what the police do to deal with the underworld, which has spread in the capital itself, the reply was that the people know what the police do if a criminal is caught. The spokesman for the police was, in fact, articulating the almost official position of the police which justifies their right to commit murder as a function of keeping law and order. The underlying principle is that the real problem is not about guilt or innocence but about creating terror so that criminals may be intimidated and thus may not commit crimes. This aspect of thinking has not proved correct as there has been an increase of crime despite of the increase of persons being killed in police custody.
Perhaps there is yet another thought process behind the permitting of such murders which is to make it appear to society that something is being done about crime.
The government is trying to create the impression to a society that is in an extreme state of insecurity that it is taking action to deal with crime. In the process the government is also giving the message that under these circumstances there is no time to look into guilt and innocence. The investigation processes and the trials can take a long time and at the end some guilty persons may even escape. As the government has no plan to improve the quality of criminal investigations or to take administrative measures in order to speed up the trial process the government takes this short cut. Therefore these murders in police custody may, in fact, be called administrative murders.
For administrative murders the question of guilt and innocence is of no relevance or importance.
Forced disappearances
Forced disappearances have been happening in large numbers in Sri Lanka since 1971. These have happened in the south, north and the east. They are also happening today. By permitting forced disappearances the state dismisses the need for deciding guilt or innocence before giving the ultimate punishment of death. This may be easily illustrated on the basis of the forced disappearances that have taken place between 1987 and 1991 about which detailed fact finding reports were made by the commissions of inquiry into forced disappearances. One established fact is that nearly around 30,000 forced disappearances were recorded by the commissions. The sequence of a forced disappearance occurrence is an abduction or invitation to attend a police or military post. Thereafter at some point the person who was abducted or went on invitation disappears. Thus, the process of interrogation, the killing and the disposal are all done secretly. This is the abandonment of the country’s criminal law and procedure regarding punishment.
However, what is more is that there simply could not have been such a large numbers of people against who there would have been sufficient amounts of evidence to prove that they were involved in a crime that would have even lead to them being charged in a court. Thus, even the involvement of a crime was not part of the consideration of guilt or innocence. Simply put, the guilt or innocence had nothing to do with the punishment. The punishment was the choice made politically and the actual reasoning of such politics has never been explained. An underlying consideration may have been to efficiently eliminate a particular political tendency. Similar thought patterns are behind the type of forced disappearances that have been happening in the north and the east. Thus, a new system of punishment has been thoroughly established in the country which is based entirely on political considerations and what those considerations are is not even known to the public. This kid of large scale forced disappearances may be called administrative massacres.
The failure to make the distinction between ‘terrorists’ and ‘civilians’
The recent responses of several government ministers and government spokesmen against the criticism of the various agencies of the United Nations, several foreign governments and many international organisations about the civilians being victims of attacks by the military in the so-called no fire zone indicates the same failure to make distinctions between guilt and innocence, between terrorists and civilians. Often it is said that simply because people who are found dead wear sarongs and saris or are of younger age or being a boy or girl is no indication at all that the person may have been a civilian. Thus, the assumption is that all persons who have been killed by military attacks may be terrorists. Here to, a primary distinction in international law between a combatant and a civilian is dismissed. The making of such distinctions is being treated as superfluous, impossible or unnecessary.
The LTTE also for many years now have not distinguished between civilians and combatants. They have consistently attacked civilians with suicide bombers as well as many other forms of the infliction of death and injuries on civilians.
This LTTE strategy of attacking civilians is used by the government as justification for its own failure to make the necessary distinction between civilians and combatants and also the obligations it has to protect all civilians. The sort of thinking that went into the killings in large numbers in the suppression of the JVP in the 1987 to 1991 period is the same as the thinking behind the attacks in recent times. Such killings can also be called administrative massacres.
From all fronts the basic foundation of criminal law in Sri Lanka has been abandoned. This can only lead to a political and societal collapse. All the types of actions mentioned above which is based on the abolition of the indicates an even greater catastrophe that is developing within the country.
At this time, when even the United Nations Security Council has viewed the Sri Lankan situation with grave concern, it is time for the Sri Lankan community itself, the legal community as well as the intellectual community and the civil society to begin to seriously deal with this enormous legal and societal crisis. If no serious thought is given to these matters, and if this collapse is allowed to continue Sri Lankan society will also be another demonstration of the banality of evil.
The first part of this series may be found at: http://www.ahrchk.net/statements/mainfile.php/2009statements/2027/
