The numerous appointments to key national commissions by the executive president, contravening constitutional requirements, are a very clear indication of Sri Lanka’s drift from a law-based society to one in which the law plays a significantly reduced role.
While criticism against presidential actions has pointed to matters including the fact that no person is above the law, that the Constitution is the highest law in the land and that no immunity can be claimed for unconstitutional and blatantly illegal acts, this criticism has not deterred the executive president from making such appointments. People who are supposed to be of some standing and knowledge, including a few former Supreme Court judges and Appeals Court judges, have accepted such appointments regardless. This motion away from the law into a state of rule by presidential and other decrees became manifest when the executive president and another minister, took upon themselves the task of censoring and banning two films.
The displacement of law as the foundation upon which society is based did not begin with the incumbent president. Looking back into the 28 years of rule under the 1978 Constitution we note two phases in which the law has been displaced to achieve the ambitions of the executive, through the ignoring of laws and legal norms and standards. In the first phase, which began in 1978 and lasted up until recent months, this was performed through modifications to the law and now, in the second phase, this is being achieved by directly contravening the most basic laws.
In the first phase, the fundamental principles of any rule of law system were displaced by the making of new ‘laws’ through the use of the majority power in parliament. The 1978 Constitution removed the judicial review that had been part of the Sri Lankan legal system under both the first and second Constitutions. Under the new Constitution, Supreme Court power was limited to the review of bills before they are passed by parliament.
The first phase of displacement of the law was typified by the use of emergency and anti-terrorism laws. During the period, which is popularly referred to as the period of terror, one of the most notorious police officers of the time, DIG Udugampala, stated in many interviews to the foreign and local press that everything had been done according to the law. The disappearances of over 30,000 people are well known, as are the maintenance of interrogation centres where the use of torture ending in extrajudicial killings was perpetrated on a massive scale. The most cruel forms of inhuman treatment, the disappearance and torture in military camps, as demonstrated by the case of the disappearance of the Ambilipitiya school children, and the disposal of bodies, either by way of road side cremations or by dumping in rivers, were all carried out ‘within the framework of the law.’
Similar violations were perpetrated in the North and the East of the country, and the consequences of this are continuing to the present day. Massive international and local protests, and even a change of government, have displaced some of these ‘laws’ which themselves displaced the normal laws of the country. However, the damage done to the fabric of the law is now a major impediment to the reconstruction of a law-based society.
In the second phase of the displacement of the law, we now see the executive president resorting to direct orders that are in violation of the Constitution. A period has been ushered in, in which the law appears to be becoming less and less relevant. There are many countries under military or other forms of authoritarian regime, where the country is run by orders made by the leaders without having to go through any legal process. The change in Sri Lanka from the first phase to the second phase may have resulted from the fact that the incumbent president does not enjoy the absolute majority that the first president benefited from, which permitted the latter to easily pass new laws through parliament.
Once the executive can openly act against the Constitution, any other acts the executive might carry out that contravene other laws will likely find less resistance. Such considerations are no longer exaggerations. The issue of the banning of films showed how easily societal acceptance adjustments are now being made to enable blatantly illegal acts.
The consequence is that any challenge on the basis of illegality will likely prove more difficult under this current phase of displacement of the law. The general complaint around the country is that nobody can do anything to change a situation, regardless of whether they are dealing with horrendous crimes, corruption, the flouting of labour laws or other similar matters. The belief in the resort to law is diminishing in the country. Widespread depression of society is frequently expressed by persons claiming to have no way out. Both lawyers and possible litigants share this sentiment in growing numbers.
Such a situation can only result in corruption becoming so rampant that almost nothing will be capable of being achieved, except through the medium of powerful politicians and their powerful allies, including powerful criminal elements. The recent killing of a Police Inspector and his wife, the former of which was alleged to have been investigating drug offenses, is a clear demonstration of the ultimate outcome of a society that is not based on law. In this case, as in many other cases, there are allegations that high ranking police officers are involved in this crime.
The Asian Human Rights Commission has drawn attention to this situation as it has been developing in the country for almost ten years. During these years, the situation has steadily become worse and there is no indication of the presence at present of any force within the country that is willing and capable of resisting this drift away from a law-based society.
