The last few weeks have seen the use of the powers of the Attorney General’s Department to freeze the accounts of a person associated with a leading newspaper which turned hostile to the government. Also during the last few days a former minister who had been vocal against the regime, which he served, accusing it of corruption and secret deals was arrested by the Criminal Investigation Bureau on charges of misuse of a vehicle under laws which prohibit bail.
These two incidents are just recent examples of the misuse of powers of criminal investigation and prosecution for which there are vast numbers of illustrations in recent decades. There have been recent revelations by the Inspector General of Police of persons in the police, military and deserters being involved in such grave crimes such as kidnapping for ransom and this has become possible, among other things, due to a long period of the abuse of criminal investigation and prosecution functions.
The politicization of the basic institutions of the rule of law has created such arbitrariness in the country that conditions such as those described by the celebrated novelist Ivan Denisovitch Alexander Solzenitzen in his book, the Gulag Archipelago have come to exist within Sri Lanka. The Gulag Archipelago refers to the penal system rehabilitation centres located in the Solovetsky Islands of the former Soviet Union in which the citizen was a plaything of unscrupulous security agencies of the state.
A former deputy minister of defense, Ranjan Wijeratna, stated in parliament when massive disappearances were taking place in the south in the late eighties, that such things cannot be done by law and that other means are needed. A similar sentiment has been expressed by some leaders of the present government.
Such abuse has taken two forms: one is not to investigate grave crimes and therefore not to prosecute the perpetrators. The second is hurriedly investigating and hurriedly taking actions to prosecute or otherwise legally affect individuals who are known to be political opponents. Just to take one example a complaint of alleged corruption involving the purchase of two aircraft for military use was not investigated and no one was taken to task. However, the complainant was charged, arrested and remanded for alleged misuse of an ‘official vehicle’. Meanwhile the JVP has claimed that on the basis of the misuse of public property half of the cabinet ministers should be serving jail terms and according to other reports ten percent of the vehicles used by parliamentarians, both present and past, under various regimes have gone missing. When political opponents are arbitrarily chosen for penal action the citizens begin to see the manipulations behind purported security measures.
When these aspects coexist all sense of the predictability of the law looses meaning and people to expect to be arbitrarily treated by the basic legal organs that are supposed to provide criminal justice.
There are other things that make citizens worry about the nature of these institutions. Can the state authorize abductions (as they have become common phenomena and there are revelations that people who are police and military officers are engaged in these acts); the people are naturally confused as to whether abductions might be a legitimate function of the state. Added to these recent abductions are a several decades old tradition of disappearances in which commissions appointed by the government itself have identified the fact that the officers of the state have participated in them. Generally speaking all of them have enjoyed impunity. Therefore the citizens can have a natural confusion as to whether these are legitimate actions of the state.
The overall impact is that the citizens can no longer predict what is possible within the law and what is not. The law may say that illegal arrest is wrong but state officers may engage in abductions and suffer no consequence. The law may say that murder is wrong but state officers may engage in causing disappearances. The law may say that extortion and demanding ransoms is illegal but the state officers may engage in such activities. The law may say that bribery is wrong but the state officers are frequently reported to be taking bribes on a very large scale.
In this situation it is not an exaggeration to say that the circumstances are turning the country into something similar to that of a gulag archipelago. Someone may object to this on the basis of different political ideologies and the historical circumstances involved in this comparison. However, the very essence of the gulag archipelago is the condition of helplessness the citizen suffers when the state becomes an instrument that has turned hostile against him. To judge from the mentalities that are developing from people living in all parts of the country it is quite evident that the people’s mentality about what the state is and what it does have changed dramatically to an extent that the expectations about the state agencies working within the rule of law is ceasing to be an expectation among the people.
When confronted with this situation the only comment that the leaders of the present government can offer is why aren’t such criticisms also made against terrorists? The assumption is that, yes we are no longer a state that respects the rule of law and we act arbitrarily in the same manner as the terrorists. The implication is that people should not expect anything more from the state than they might expect from the terrorists. This idea of explaining away the responsibilities of the state on the basis of comparing itself to an enemy is also part of the mentality of a gulag archipelago.
The magnitude of the problem faced in Sri Lanka is of that nature. The Asian Human Rights Commission has pointed out for several years now a situation of an exceptional collapse of the rule of law in the country. The collapse has not only made the basic institutions of criminal investigations and prosecutions ineffective but also allows them to be directly used to subvert the rule of law and democracy. How people can escape from the gulag archipelago is the problem confronting all citizens who want their state to return to the function of a protector of its people.
