SRI LANKA: Reflections on the killings in the prisons and the impeachment of the Chief Justice 

Basil Fernando

Humankind has at least a few millenniums of experience in keeping prisons. It is part of the unfortunate predicament of humanity that there is this need to have prisons. However, over these long years, through bitter experiences, humanity has learned to lessen the suffering involved for the inmates of prisons and to make the whole experience within the bounds of humane limits and within the framework of human cooperation.

The art of governance is the art of achieving cooperation among disparate factions. Perhaps the hardest aspect in achieving that cooperation is when certain aspects of liberty are removed from some individuals as a matter of punishment for whatever wrong they may have done. Achieving cooperation under these circumstances requires enormous human ingenuity, where people who are confined into a position of having limited freedoms understand that it is for their own good under the given circumstances to adjust to certain rules within the prisons. In this difficult endeavor, humanity has made enormous progress.

A hallmark of such progress was when the philosophy of governance changed with the influence of enlightenment thinkers in Europe. Among so many intellectual contributions, what stand out are the approaches of John Locke and Jean-Jaques Rousseau, who laid the foundations for rules of governance that were adopted after the French Revolution and in the drafting of the American constitution. Through a completely different path, Britain too has developed its own principles of governance.

It was those principles and the philosophies on which they were founded that created the groundwork for dealing with the problem of prisoners through a completely different perspective. While, out of necessity, certain restrictions were brought upon persons who were found to be guilty of crimes, at the same time there was the development of methodologies within which they could cooperate with the authorities with as limited amount of coercion as possible.

With the arrival of the British in Sri Lanka, these philosophies and principles found their way into the Sri Lankan administration of justice. It was to the credit of the talent and the ingenuity of generations of Sri Lankans who were able to grasp these principles and establish the rules and procedures within which cooperation with the prison population and the prison authorities were established.

This came to an abrupt end with the introduction of the 1972 and 1978 constitutions, which changed the principles of governance from the fundamental ideas of the enlightenment into crude manipulations by local politicians, who forgot the ideas of cooperation and reduced governance to direct control of the population for their own ends. This same philosophy spread into the prisons. The first, the most inhumane and barbaric treatment of prisoners, took place on a large scale in July 1983, when a large number of Tamil prisoners were killed inside prison.

The incidents of this weekend are the second most barbaric act, which was a result of a rejection of the principles of governance on which the behavior of authorities were based. Like all authorities in the country, the prison authorities today are manipulated by the authoritarian system and the inner structure of the prison system has broken down.

Instead of a system of cooperation, a system of crude coercion has been introduced and this is now done under the tutelage of the Ministry of Defense. A former Executive President, DB Wijetunga, once said that wherever DIG Udugampala went, there were complaints about disappearances. It can now be said that wherever the Ministry of Defense enters, there are killings and other forms of cruelties perpetrated on the population. This is manifest in the way that the people of the North and East are treated now. It is the same kind of manipulation that has entered into the control of prisons and the large scale killings of the prisoners during this weekend, which were a direct result of STF interventions, which are done under the control of the Ministry of Defense.

Like the entirety of the country, which has lost the system of governance on the principles of the enlightenment, now the prison authorities have been dragged into a similar type of chaos as that exists throughout the country.

It is this same kind of chaos that is reflected in the impeachment proceedings. Under the kind of coercive methodologies that are now employed, the crushing of one individual, a woman who is now the Chief Justice, may be a simple task. However, what is being destroyed is not just one individual but whatever that remains from an old structure of governance, where the protection of the dignity of the individual was kept in the hands of the judiciary alone. Perhaps the greatest Chief Justice in Sri Lankan history, Sir Sidney Abraham, epitomized this role by his historic judgment in the Bracegirldle case, where an order of the representative of the Queen, the governor of Sri Lanka, was declared null and void and quashed by the court. It is that structure of governance and the principles of independence of the judiciary that is being destroyed now.

The despicable cruelty in the prisons and the arrogant interference into the independence of the judiciary are all a part of the sinking of the foundations on which Sri Lankan civil administration and administration of justice are based.

The Executive Presidential system is the greatest danger to the nation and the greatest danger to the Sri Lankan people to remain as a civilized people.

The killing of prisoners, who are in the protective custody of the state, is the worst act that any civilized people could ever do. In Sri Lanka that has happened now and it is no surprise then that, at the same time, the final blows are dealt on the independence of the judiciary.