SRI LANKA: Fighting together against unlawful acts of lawful authorities 

Basil Fernando

For the last 20 years I have been living in Hong Kong. Here over 98% of the population is Chinese. I belong to the small minority which includes many other races and will try to illustrate some issues by using this experience.

In any country there is a formal legal system and an operational one. The Formal systemconsists of laws — statutes — customary laws — judicial precedents and in the modern context obligations under the international law — and an operational system, meaning the way lawful authorities implement the law. A good or functional legal system is one where the formal system and the operational system are consistent with each other. This does not mean that there are no violations of the formal system by the operational system. It means that violations are very limited and there are systems in place to correct the violations and to sanction the violators. The legal system in Hong Kong belongs to that category. It is not perfect, but there is a high degree of conformity between the law and its implementation.

In Sri Lanka today, the situation is the very opposite. The formal system and the operational system are in opposition to each other. For example, the formal system forbids extrajudicial killings and torture. However, the lawful authorities have engaged in large scale disappearances and in all police stations torture is a routine daily practice. The formal system guarantees fair trial but the operational system denies this by extraordinary delays, by the absence of protection to jurors (as shown by the recent case of Chandana Katriarachchi) and to witnesses and other defects such as lack of access to justice to the poor and all kinds of corruption associated with the justice process. The total policing system defeats law enforcement and today the Attorney General’s Department also contributes to operational failures. All aspects of national life reflect the operational failures of the lawful authorities.

In Hong Kong I enjoy legal protection, despite the fact that I belong to a tiny minority. In Sri Lanka citizens, whether they belong to the majority community or a minority, do not enjoy legal protection, as I have demonstrated in earlier articles.

This may be illustrated further by a case from Hong Kong. A Sri Lankan domestic worker, a young girl who was asked to do more work than she could bear by her Chinese employer, wanted to resign. The vengeful employer fabricated a charge against her for stealing a shoe. She was arrested and she did not apply for legal aid due to her ignorance and at the trial she was convicted for three months. At the prison she was instructed of her right to appeal and to ask for legal did. She appealed and got lawyers paid by the state who won the case for her. She won a handsome compensation award, received more money than she would have earned for many years and returned home.

However, in Sri Lanka the thousands of people falsely charged in fabricated cases end up with a very different result. This can be illustrated by thousands of such cases.

A Sri Lankan maid badly treated by one citizen received the assistance of the state to fight back in Hong Kong. Her minority status and low income did not deprive her of the protection that is available under the law. The operational system guaranteed what the formal system promised.

Document Type : Article
Document ID : AHRC-ART-014-2011
Countries : Sri Lanka,
Issues : Judicial system, Rule of law,