Sri Lanka Human Rights Watch
Deconstitutionalising, deinstitutionalising and the denial of legal remedies as a modern technique of terror
(February 02, Colombo, Sri Lanka Guardian) The deprivation of a sense of citizenship by a process of deconstitutionalising, accompanied by deinstitutionalising and the deprivation of legal remedies has become a more sophisticated form of terror in the modern state which is even more effective than the direct use of physical torture and other methods on citizens.
Deconstitutionalising
What is meant by deconstitutionalising is the process of making constitutionalism a meaningless concept. The primary way of doing this is to place the head of the state above the law.
Once the head of the state is placed above the constitution and he can do anything irrespective of whether it contravenes constitutional provisions or any other legal provision, constitutionalism can be displaced. The head of the state can be placed above the law by declaring that the courts have no jurisdiction over him whatsoever. If the head of the state contravenes constitutional provisions the courts cannot make the head of the state answerable for such transgressions . Once this can be done the head of the state can stop the operation of some of the most vital provisions of law that might impede upon his power.
For example, if the law provides that in the making of appointments or the dismissal of persons certain legal processes have to be followed, the head of the state can displace the operation of that law by doing the contrary. As he cannot be questioned in a court of law then the fact that he has contravened the law would cease to be a matter of importance.
When this type of practice is done over a period of time every form of restraint that is placed on the head of the state in order to protect the rights of the people can be done away with. In this event there is a paradox. On the one hand the law still remains in the books. There are no amendments to the law which has displaced the constitutional protection. However, by a series of practices the head of the state and his agents are able to act as if these provisions of the law do not exist. By these means the citizens become aware that once the head of the state and his agents through various practices engage in acts that would normally be considered illegal, there is nothing that could be done about it and therefore there is no protection for anyone if the head of the state decides to act in that manner.
The decisions of the head of the state to act in a manner which contravenes the law may directly relate to civil rights or property rights or may, in fact, relate to them indirectly. The direct deprivation of civil liberties may be, for example the authorisation of extrajudicial killings by the head of the state. Under various pretexts the head of the state may institute various regulations which have the impact of authorising the security forces to do acts which would otherwise amount to acts of blatant breach of the law. This may include the extrajudicial killings of persons, the arrest, detention and torture of individuals for indefinite periods, the denial of fair trial, the authorisation of practices of admissions of confessions as part of valid evidence and endless other ways by which citizens rights may be deprived. Over a period of time such anti terrorism or special emergency laws may become so much a part of the normal law of the land that the various practices of protection which existed in the constitutional law of the country may be relegated to an insignificant place.
Though some may keep on hoping that particular situations which gave rise to anti terrorism or special emergency laws may disappear and that normal laws will reappear again, in fact, under one pretext or other these specials laws which suspend the normal laws will remain in operation.
Deinstitutionalisation
What is meant by deinstitutionalisation is the process by which various practices inbuilt into institutions within a rule of law framework are displaced.
Under a normal institutional framework within a country there are laws, rules and procedures which regulate the functioning of those institutions. The public is well aware of the way that these institutions are supposed to function and learn to adjust to the new functioning within the overall framework of the law. Working within this framework provides the citizens with certain safeguards with regard to their rights. The citizens dealing with a public institution would know what to expect from it.
The process of deinstitutionalisation is the way of doing away with the adherence to the legal process within the public institution. By such removal of the practices which constitute its normal behaviour the citizen is deprived of the possibility of knowing what to expect from the institution. In fact, long term impressions about the expectations of the institutions are removed and a new set of impressions is created by which people lose any confidence in the rational behaviour of the institutions.
The institution thereafter begins to function on the basis of pressures that are exercised by those in power. Anything that the citizen wants to achieve through the institution has to be done by reference to those pressure points or avenues of power rather than by a rational process where legal procedures will regulate the manner in which the institution works.
By such deinstitutionalisation it is not only the public that is affected but also are the officers of the state who are operating these institutions. They too would not know how the appointments happen, how the transfers take place or how the punishments are meted out or how dismissals take place. All these things are no longer subjected to any kind of rationalised procedures. On the other hand they all depend on the manner in which the power is used within the country.
Thus, the officers of a institution, if they wish to remain within the institution and even to have their positions safeguarded have to learn the habit of getting favours from their superiors who have influence with those in power. Thus the entire institution no longer functions in a manner in which a public institution is supposed to function within the regulations of the law but by unwritten codes of conduct that are developed in terms of power. Thus, within such a context both the public officers as well as the citizens are powerless and unable to have any kind of expectations which are based on the conception of entitlements or rights.
When law is replaced by terror
When deconstitutionalisation and deinstitutionalisation takes place, then the idea of legal remedies becomes an absurd concept. The law may provide that a person who is aggrieved on some issue has a particular kind of remedy through this or that court. However, when the working of that process is directly affected, or one might say polluted by the process of deconstitutionalism and deinstitutionalism which has infected the system, such legal remedies cannot actuallt be achieved.Thus, although there is a legal entitlement to a remedy the achievement of such may become impossible.
For example, a candidate of an election who feels that his victory has been deprived by illegal means such as by tampering with the vote has a legal right to go before the court in order to annul the election. However, where deconstitutionalisation and deinstitutionalisation has taken place the chance of success in achieving in that action is so remote that he may not even believe that there is any real possibility of success.
This denial of a legal remedy can apply to almost every issue such as arrest, detention and other forms of the abuse of power. On the one hand violations of rights take place and on the other there is deep belief built into the consciousness of the citizens that if they try to resort to obtaining a remedy that would be defeated by a process of deconstitutionalisation and deinstitutionalisation that has taken place within their society.
Thus, this creates a sense of terror and hopelessness within the citizen who is unable to think of any kind of retaliation against brutality and the abuse of power and the terror that is unleashed by the state upon him.
Sri Lanka is a clear example of of a place, where citizen face terror due to a process of deconstitutionalisation and deinstitutionalization has taken place. Last presidential election and its aftermath has once again demonstrated the powerlessness of citizens of such a society where law is displaced by terror.
Diary of Terror- Fifth Report- 02 Feb.2010
Sri Lanka Human Rights Watch
A Murder allegedly by the Presidential Security Unit
(February 03, Colombo, Sri Lanka Guardian) The JVP Urban Counselor for the Ambalangoda district, Chandradasa Naiduwadu, who sustained injuries following an assault by an unknown group on the 25th January, the day before the presidential elections passed away in hospital on the 2nd February. He was undergoing treatment at the Bambilipitya Hospital for the injuries suffered in the assault. He was a member of the JVP and worked as a teacher. The JVP spokesman, speaking to the JVP stated that it was the Presidential Security Unit that was involved in the assault which resulted in Naiduwadus death. There were many reports of assaults on election monitors and opposition supporters of Sarath Fonseka from many part of the country.
The JVP asked for an investigation into the use of the Presidential Security Unit for electoral work and an assault on the opposition. They said that they would pursue this complaint until results are achieved. According to the reports so far no inquiry has been conducted into this death and no one has been arrested despite of the names of some of the persons involved in the assault being mentioned by the victim in his statement. The JVP spokesman said that Mr. Naiduwadu made a statement in which he provided details of the assault.
Under Sri Lankan law such a statement by the deceased would be important evidence about the circumstances of the death. As the deceased identified the persons who assaulted him it is the duty of the police to arrest these persons and conduct a proper inquiry. However, the ability of the police to conduct a proper inquiry into this matter is very much in doubt as the Presidents own Security Unit is suspected to be the culprits.
The reemergence of the Presidents Security Unit being engaged in crime reminds us of the past where, particularly during the time of presidents Premadasa and Chandrika Bandaranaike the Presidential Security Units acquired notoriety for engaging in serious political crimes. In fact, during this time the Presidential Security Unit emerged as a terror unit and was feared throughout the country. The emergence of the existing Presidential Security Unit in a similar fashion could create chilling results in the country and contribute to the regeneration of a fear psychosis. Once such a unit is suspected of being engaged in crime the police and the investigation units do not dare to investigate such events.
Furthermore, once such a unit is perceived as being engaged in crime there are many other criminal elements that make use of the situation and try to create the impression that this unit is actually behind the crimes that they are committing. Thus, in the overall increase of criminal activity the reemergence of the Presidential Security Unit as a criminal element could have a disastrous impact.
The mayor of Batticaloa has gone into hiding
The mayor of Batticaloa, Mrs. Sivageetha Prabakaran, has gone into hiding following the presidential elections. During the elections Mayor Sivageetha openly identified herself with the opposition common candidate, Sarath Fonseka. She campaigned and gave a television interview expressing her support for the opposition candidate. She also expressed that as she has identified with the opposition during this election her life is now under threat and her security has been withdrawn. According to the reports, after the elections she has been threatened by bands of goons that are associated with the paramilitary leader and government minister, Vinayagamoorthy Mualittharan, alias Colonel Karuna. This Batticaloa area which is under the control of Col. Karuna is known to be an area where the militia continues to carry arms and anyone opposing the political groups ruling the area face serious threats. Mayor Sivageetha has informed reporters while she is in hiding that her life is in serious threat and that she is in hiding because of the threats coming from government supporters who are ruling the area.
In Batticaloa and the north and the east the opposition common candidate won the election against the president, Mahinda Rajapakse. As the parliamentary elections are due soon, Mayor Sivageetha and other opposition political candidate may face serious threats from their opponents.
Marked ballot boxes found in the garbage
The Lanka News Web reporting the finding of a large amount of marked ballot papers favouring the opposition common candidate, the retired general Sarath Fonseka in the garbage found at Ratnapura. The UNP Member of Parliament was informed of this and she was able to visit the place and found a box containing marked ballot papers at this dump. Examination of the papers revealed that 60 percent were marked in favour of the opposition candidate. The ballot papers carry the signature and the official stamp of the officials that conducted the presidential election on the 26th January.
Usually ballot papers are kept in bundles of fifty. However, in the bundle that was discovered at this dump they were heaped in 65 ballot boxes. This obviously suggests irregularity on the part of the officers who had the responsibility of preserving these papers. Under the election law of Sri Lanka the Commissioner of Elections is under obligation to preserve the ballot boxes for at least six months following the election as the papers may be needed in the event of challenges of the results and the papers may also be needed in court.
The opposition stated that the finding of these ballot papers was clear evidence of election rigging that the opposition has openly claimed following the 26th January. The opposition parties have called the election both rigged and fraudulent and called for the annulment of the results.
Army officers arrested
The government newspaper, the Daily News, reported that 37 officers including a brigadier, a colonel, several army deserters and four civilians have been arrested under emergency regulations and detained pending the completion of investigations. There are many reports of the arrest and attempts of the arrest of army officers. The Magistrate’s Court in Colombo yesterday dismissed an application for the arrest of an officer, S. Jayesekara. The application for the arrest was by the Criminal Investigation Division. The CID reported that the colonel had been asked to report to the CID but he had refused to do so. The lawyers for the colonel objected to the request for the colonel to visit the CID office to give a statement stating that this was a ploy by the CID in order to arrest the colonel. The magistrate order that no one had the obligation to visit the CID to make a statement and that if the CID wanted to take a statement from the colonel they could do so at the premises of the court. Thus the attempt to arrest the colonel has been averted for the time being.
Several officers arrested by CID are kept in the fourth floor. Their families are allowed to see them only for one or two minutes. Even for that they have to wait for several hours. Lawyers have not been allowed to see them. None of them have been told of any specific charges.
The government media including both the television and the radio is carrying on a campaign against the alleged perpetrators of a coup on the Election Day the aim of which was to assassinate the president and his family.
However, it appears that the much of the information given earlier by the government media on the alleged conspiracy had been proved false.
Earlier the government media that there was a team of media personnel who were kept in a bus ready to broadcast the victory of the opposition candidate to the nation as part of the conspiracy hatched by the opposition. However, officers of the media organisations told the BBC Sinhala Service that this was a false allegation as such an operation would have required an enormous amount of equipment as well as the technical staff . There was no evidence of any sort of the availability of such resources near the Cinnamon Park Hotel where the alleged conspiracy was alleged to have taken place. One media spokesman said that no one from the media has been arrested on the basis of the allegation of any such conspiracy and that the whole campaign is being carried out over the government media purely as propaganda. The exposure that such a bus containing media persons waiting to make a broadcast to the nation is a fake story goes to the very heart of the campaign that the government media is carrying on regarding the alleged conspiracy itself.
A Punishment for exposing military corruption
It appears that the persons who have been asked to resign from senior posts in the military were persons who played key roles in the recent war against the LTTE and are popular leaders in the Sri Lankan armed forces. These officers have also been critical of the allegedly corruption practices which have taken place within the military. One of the major issues of the last election was a campaign against corruption and particular references were made of the corruption relating to arms purchases in which the Secretary of the Ministry of Defense is involved. The attempt to get these army officers to resign is also seen by observers as an attempt to silence the voices calling for the exposure of corruption within the armed forces as well as the country in general.
In an interview to a foreign television channel the Secretary of the Ministry of Defense stated that whatever cry the external agencies may make, whether they be UN or anyone else there will not be any inquiries into crimes or violations which are alleged to have happened in Sri Lanka. He went on to say that he, as the Secretary of the Ministry of Defense, is in charge of these matters and that he will prevent any attempt to have an investigation. He further said that, in fact, no crimes or violations have happened so therefore there is no need for any such investigations. The attempt to block criminal inquiries into the allegations of criminal conduct on the part of the government, whether relating to war crimes or other crimes appears to be one of the major reasons for the allegations of a conspiracy on the Election Day.
Observers say that the allegation of a conspiracy was used mainly for conducting a severe campaign against the opposition by the use of the state media. Such a campaign was directed to detract attention from the allegations of massive electoral fraud which is alleged to have taken place.
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