Why Is Sri Lanka Abandoning Court Centered Justice?

FOR IMMEDIATE RELEASE
AHRC-ART-109-2012
November 6, 2012
An Article from the Asian Human Rights Commission
Sri Lanka: Why Is Sri Lanka Abandoning A Court Centered, Law Based System Of Justice?
Basil Fernando
A reflection on the 16th murder in Kahawatte, gruesome violence in Galle and the petition for impeachment
The 16th murder of a woman took place at Kahawatte last week. The woman is said to be 65 years old and was staying alone in the house until her son came back, when she was brutally murdered. Her body was found in the parlor of the house when the son returned. People of Kahawatte have been under the threat of these kinds of mysterious murders. The police from time to time claimed that they have solved the problem and the now the situation is under control. However, the credibility of such statements is then tested by new events like the one that happened last week. It was only three months back that a mother and a daughter were brutally murdered in their own house.

There are also the incidents in Galle, which are gruesome and bewildering. One man was attacked, one of his arms and a foot was cut off, and then he was stabbed in the back and left on the road. A video published on the internet showed this gruesome and sad sight. It is said that he lay there for quite some time before an ambulance reached to take him to the hospital. The video footage shows that while there were many people nearby, no one even dared to come near him or to offer any kind of assistance. It was reported later that this man died due to his injuries. According to the reports, some persons came from behind him in a van while he was going on his motorcycle and knocked him down. And then after he felt he was cut and stabbed. Two policemen watched the brutal attack and his prolonged struggles as he bled out but they did not intervene.

It was not long after that the next report came, about four persons whose hands were tied behind their backs, blindfolded and shot in the head and left by the wayside at Poddala in Galle. The initial police report was that these were the culprits who had caused the death of the man mentioned above and that they belong to rival gangs. The story was that another gang, who were supporters of the dead man, had killed these four in revenge. However, the stories by the relatives of the four dead persons revealed that the four persons were taken in a police vehicle and it was later that they were found dead. One of the persons who were killed is said to be a navy officer who had come on a holiday. The four murders suggest a police killing rather than a gang murder.

These two incidents at Kahawatte and Galle both point to a situation where in the law enforcement capacity of the police has reached almost to a zero point throughout the country, an observation that almost everyone has been making for quite some time now. Often, what follows a serious crime is some gesture by the police about taking action and then a report that the matter has been resolved. However, instances where there are serious investigations are by now rather rare occurrences. The internal contradictions within the policing system are so many that the type of capacity which existed within the police in an earlier period is now almost lost. In fact, there is not even an expectation that the police will do a proper investigation or, to be more exact, that the police will be allowed to do a proper investigation.

When things are as bad as that, there is hardly any initiative to encourage the police capacity for law enforcement within the framework of rule of law. The initiatives that have come forward, as shown by the newly proposed Criminal Procedure Amendment Bill, are to make the police more distanced from judicial control and to adopt the tactic of more brutal methods of dealing with some criminals (while leaving many others to go their way, free). In this situation, the killings of the four persons are no surprise. There is a mentality that is promoted to adopt such methods in dealing with crimes.

It was quite some time back that there were police working within the framework of rule of law, guided by the Penal Code, Criminal Procedure Code and their own police departmental orders, and led by discipline officers of higher ranks who engaged in crime control. These officers knew that they were directly responsible to the courts and that everything they did had to be reported to the courts. The system they followed was a law based system, which had at its center the courts’ control by judicial officers. They understood their role as part of a judicial system of criminal justice.

All this changed, particularly after 1971. Under the guise of emergency, the police were given extra-legal powers and were used to do extrajudicial activities. The most manifest activity of the time was abductions, which were followed by disappearances. It was a license to kill and to dispose of bodies, a power given to the police and the armed forces, which changed the character of the policing system in Sri Lanka. It changed from a law based, judicially controlled criminal justice system into a system controlled by the Ministry of Defense, and guided by emergency laws, anti-terrorism laws or directives that have no legal basis at all. Police officers became less and less accountable to the judicial system. The powers of judges were limited by emergency and other regulations. A tacit understanding developed that the things that judges could control were quite limited and that officers could follow orders from somewhere else.

This system has lasted from 1971 up to now. The times of tensions, sometimes called 'a time of war', distance the judicial control of the police and other law enforcement agencies, and they became a law unto themselves. The statement of then the Deputy Minister of Defense, Ranjan Wijeratna, in parliament, "these things cannot be done according to the law," became the unwritten law. All the governing parties led this system to develop into a system outside the normal law and, more and more, the ministry of defense became the controller of "justice", and the courts had less and less to do in controlling the process. In fact the words "the due process of law" began to be forgotten and today hardly any police officer uses or even understands these terms.

Gradually, a mentality developed among the politicians that a system of justice based on law and control by the judiciary is rather an absolute affair and that they could handle these matters on their own rather than through the judges. There were some developments in the constitutional setup itself which undermined the judiciary. Both the 1972 Constitution and the 1978 Constitution displaced the idea of supremacy of law in favour of the supremacy of politicians.

It is this distancing of the system of crime control from the legal system and from judicial oversight that has brought about this situation and the failure to control crimes. However, the politicians do not understand the problem in that way. The politicians think that they should take over the matter themselves and keep the judiciary out even more to make things efficient. The Ministry of Defense is considered the center of efficiency, while the judiciary and the law are considered obstacles to the workings of the Ministry of Defense.

Even the LLRC was able to see these problems and one of their recommendations was to separate the control of police from the Ministry of Defense. However, like everything else, such recommendations were useful only to create a deception at the international forums and these things have no relevance to real life issues. The real life issues are dealt with by the same philosophy, "these things cannot be done according to the law".

The attack that is now happening on the judiciary, which has been manifested through series of events culminating in the impeachment petition, is in this same mentality of considering the law and the judiciary as irrelevant or even as obstacles to the way the politicians want to do things. The writers, on behalf of the government, directly argue (as in Divaina today, 05 November) and seriously advise the opposition not to oppose the impeachment petition but in fact to support it because subjugating judges would also benefit them when, in some future date, they come to power. The judiciary is seen as an obstacle to the efficiency of the executive. When the BBC questioned some government MPs who had gone to the speaker's house to submit the impeachment petition as to why they are doing that, their reply was the judiciary is doing an injustice to the executive and to the legislature by obstructing what they are trying to do. They saw the judicial interpretation of law as an obstacle on their way. They even turn it into an injustice done by judiciary. Their question was that if the judiciary is obstructing us (meaning the legislature and executive) do we not have a remedy? Their own answer was yes, they had a remedy, and that was the impeachment. Thus, impeachment was seen as a way to stop a judicial role in interpreting law. In fact, the writer who wrote the government point of view to the Divaina states that he has already demonstrated in his article that leaders in India and the United States do not allow judges to behave in that way (categorically stating the falsehood that judicial review isn’t tolerated in those countries). That was the thinking behind the petition for impeachment.

Sri Lanka has thus arrived at a point where the law and the judiciary are regarded as obstacles to progress. Executive action alone is seen as the real government. The judiciary is no longer seen a branch of the government – definitely not an independent branch. If the judiciary wants to survive within this scheme, it is forced become a branch of the executive instead. That is how far Sri Lanka has derailed from the path of law and the path of administration of law under judicial control.

The result is what we saw at Kahawatte and Galle. These are not exceptional places. Everywhere there is lawlessness and the resulting chaos. And no one can find a solution to that situation. This is no surprise. When the path of law within an administration of justice, authoritatively interpreted by judiciary, is lost, then justice is lost all together. Justice is fairness. When justice is lost, fairness disappears. When fairness disappears, there are brutal forms of competition. When the competition degenerates by the actions of rulers, then violence and chaos is the result.

That is what Sri Lankans are experiencing at Kahawatte, Galle and Hultsdorf also.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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