Two elections were held in Sri Lanka in 2015, one in January and the other in August 2015. One was to elect the President, and the other was to elect members of Parliament. In both these elections, the government of President Mahinda Rajapaksa was defeated, and, as a result, a coalition of new parties established their government.
The central election promise of those who assumed power under the new government was that they would change the political landscape of Sri Lanka, from an authoritarian style of rule to a full-fledged democracy. The key component of the political strategy promised was to end the executive presidential system and establish one where the power model would be based on democratic principles.
The election slogan was the establishment of “Yahapalanaya”, meaning good governance. The new President, Maithripala Sirisena himself, made this slogan quite popular by repeating it often in his speeches and communications. Prime Minister Ranil Wickremasinghe has also insisted on transparent governance particularly on matters of finance.
However, over the months what has become rather stark is that while good governance has been proclaimed as the government’s key strategy, in practical terms the government seems to lack the support of a strong legal mechanism to carry out its promises. The basic institutions of justice, i.e. the police, the prosecution system in the hands of the Attorney General’s Department, and the judicial institutions are manifestly defective and this deprives the government of practical mechanisms through which they could deliver what they have promised to the people.
The defective nature of the justice mechanism is, of course, not the fault of this government. It is a creation of about four decades or more when the rule of law was undermined by the imperatives of the executive presidential system. Essentially, the executive presidential system meant the superior power of the President over the Parliament as well as the Judiciary. The old balance, created by the first constitution of Sri Lanka, known as the Soulbury Constitution, was displaced. Already, in 1972, in the new constitution that was adopted, the place of the Judiciary was undermined. However, the 1978 Constitution virtually displaced all the basic constitutional notions on which the Soulbury Constitution was founded.
In the decades that followed the adoption of the 1978 Constitution, new practices developed in the area of law making, legal interpretation, and also basic objectives of institutions like the police and the Attorney General’s Department. Following the orders of the President became the basic style of administration and in doing so all internal checks and balances that had earlier been established were systematically abandoned.
Throughout the entirety of the country, the system of law enforcement suffered a near complete breakdown. Incidents have regularly demonstrated that at the local police station level there is complete lack of knowhow of conducting arrest and investigations in the manner required by law.
The Asian Human Rights Commission has reported on a regular basis the arrest of persons that cannot be justified in any manner and also torture and ill-treatment of prisoners, which has often followed the arrest of persons belonging to low income groups in particular.
The system of command responsibility has suffered a great setback and supervision of the conduct of officers at police stations has been, for the most part, abandoned. The key player of disciplinary control, within the overall framework of police regulations, is the assistant superintendent of police (ASP) of a given area. Among his duties are: paying regular visits to the police station, inspection of all the facilities within a given station, seeing to the training of officers, and taking active part in all investigations into serious crimes. He is required, for example, to visit the scene of crime, whenever serious crimes like murder take place.
Unfortunately, in many parts of the country, ASPs themselves have become complicit in corruption as well as neglect. The cases are rare where an ASP has taken an active role in stopping the use of torture and ill-treatment within the police stations, despite a large body of complaints that have surfaced from all over the country.
Under the last government, there was a constant allegation of politicization of the police and the interference of politicians in directing investigations in the manner they thought fit. The new government has promised not to interfere with the functioning of police officers and to allow the normal process of law to take place. However, the new government has not taken any measures to set the system right by issuing clear instructions and taking firm action against those who break the law and discipline. It is not unjust to allege that the new government has condoned the pathetic state of affairs that prevails in Sri Lankan police stations. This situation has contributed greatly to undermining the rule of law in the country.
The only positive step that the new government has taken in this regard is the appointment of the new commissioners for the National Police Commission. However, the power of the Commission consists mostly in making recommendations; its power of directly implementing its own decisions arrived at after an inquiry has been taken away. Thus, unless the law is soon amended to grant the Commission more powers to ensure its effectiveness, taking corrective actions regarding policing matters will continue to be neglected.
• Government must issue clear policy statement
In terms of measures that the government intends to make, on reform of the policing, prosecutions, judiciary institutions, and penal system, and the Commission on Bribery and Corruption, the government needs to make a clear policy statement. It needs to clearly state what will be the content of such reforms and what will be the time frame within which it intends to achieve these changes. The government must also reveal to the public what would be the allocation of funds for achieving such reforms. A clear statement on these matters would be the beginning of the practical implementation of Yahapalanaya, i.e. good governance. So long as the government fails to do this, Yahapalanaya will remain empty rhetoric.
• Extraordinary delays in adjudication process needs to end
This involves the increase of court houses, particularly court houses for the high courts, where trials for all serious criminal cases take place; increase of judicial officers so that there will be an adequate number of judges to carry out the judicial function with required professional integrity, independence, and efficiency; increase in staff members of the Attorney General’s Department, so that the Department would once again become capable of discharging its duties to the public without making a mockery of justice and without having the excuse that increase in the filing of indictments force State counsels to demand postponement and thereby contribute to the enormous delays affecting adjudication.
Also, limits to granting dates to suit the convenience of some lawyers should be discontinued forthwith.
Furthermore, day-to-day hearing of criminal trials should be restored, and the practice of postponing trials from one day to another should be discontinued immediately as well. If hearing of trials on a day-to-day basis is employed, particularly in the high courts, where trials relating to serious crimes take place, the problem of delays will be reduced greatly.
Granting of suspended sentences for serious crimes such as rape or murder, for the purpose of reducing the courts’ workload, should be discontinued immediately. Such practices are an encouragement to criminals and against the basic principles of criminal law.
The government, in consultation with the Supreme Court and the Bar Association of Sri Lanka, should set up a committee to monitor how speedy trials are guaranteed without undue delays. Aggrieved parties should be able to petition this committee regarding any unreasonable delay in the adjudication of cases. The committee should present regular reports to the Chief Justice of Sri Lanka on the manner in which right to a fair trial without undue delays is guaranteed in all courts, particularly in the high courts.
• Magistrates should ensure no person is arrested or detained on ‘flimsy’ grounds without adequate evidence for reasonable suspicion of offence
The practice of arresting persons without any basis justifiable in law has become common. Often, innocent persons are arrested and tortured or ill-treated for the purpose of finding whether they are involved in any crime, or in order to obtain a confession by force. The practice of forcing arrestees to sign on blank pages is also a common practice. In order to eliminate arrest and detention without a legally justifiable basis, magistrates should allow affected persons or their lawyers to present their submissions on such baseless arrests and detentions. Magistrates may encourage filing of affidavits by such affected persons and then inquire into such allegations.
• Measures needed to improve the quality of policing
Except in places like the Criminal investigation Department (CID), the quality of policing in Sri Lanka is extremely poor. Forensic and scientific modes of criminal investigations should be rapidly introduced, and for that purpose the educational standards of the police should be raised. In particular, the qualifications of officers in charge of the police (OICs) and assistant superintendents of police should be raised, as these officers play a key role in direct implementation of law and the conduct of criminal investigations. The system of command responsibility should be upgraded so that the higher-ranking officers are able to take responsibility for investigations and other policing functions. The necessary material resources should be provided so that the officers can carry out their duties with relevant equipment, making people feel that their security is being guaranteed by a highly functional and efficient policing system. Additionally, the taking of statements and all other documentation should be computerised, and the officers must be given adequate training to operate such technological facilities.
• Raise quality of Commission against Bribery and Corruption
The model under which this commission has been established is now out-dated, and new models rely heavily on persons with greater knowledge and efficiency. In the modern conception of corruption control agencies, emphasis is also placed on the education of citizens on matters relating to the elimination of corruption, as well as providing protection to complainants and witnesses so that people may come forward without fear to actively cooperate with anti-corruption authorities.
• Effective measures to end torture and ill-treatment, extrajudicial killings, and enforced disappearances
Under no circumstances should the police, military officers or members of paramilitary organisations be encouraged or allowed to commit torture, extrajudicial killings or enforced disappearances. All such acts are illegal at all times, and cannot be justified in any manner under any circumstances. The Sri Lankan police have a notorious record of engagement in such crimes; the government must take genuine and practical measures to prevent such acts and take disciplinary measures whenever such acts take place.
• Human Rights Commission needs to promote reforms in justice institutions
The Human Rights Commission of Sri Lanka (HRCSL) cannot achieve its mandate to protect and promote the human rights of all citizens so long as the institutions of justice in Sri Lanka—policing, prosecution, judiciary, and penal institutions—are in their present dysfunctional state. On the basis of rights violation complaints that the HRCSL itself receives on a daily basis, the HRCSL should develop its own critique of the justice institutions regarding their failure to protect people’s rights. The negative role played by justice institutions is the major cause of human rights violations in all spheres of life, in civil and political rights as well as economic, social and cultural rights. The HRCSL must particularly be concerned about the failure of justice institutions to create an environment within which women can exercise their rights. The climate of fear and insecurity that are a direct result of the failures of the justice institutions prevents women from freely moving around and from taking part in economic and social life, thus asserting their equal status. Sexual violence against women and children is encouraged by the failures of justice institutions to act promptly and to curb such crimes. So long as this situation remains, the HRCSL can do little by way of fulfilling its mandate. Thus, the mandate of the HRCSL is linked with the reform of Sri Lanka’s justice institutions.
• National Police Commission needs to address grievances
The National Police Commission (NPC), which was recently appointed on the basis of constitutional amendments, has the difficult task of bringing order within the policing institutions in Sri Lanka. Given the depth of the crisis of law, created by the failure of the law enforcement agencies, the NPC should develop a vision and a methodology of intervention for addressing reform of the policing institutions so that it could contribute to peace and harmony within the country. In particular, it should create opportunities for listening to public grievances arising from the malfunctioning of the policing system.
• Civil society must take up institutional reform
Civil society organisations must give highest priority to reforms of justice institutions, as none of the promises of good governance, or aspirations for greater democracy, can be achieved without them. Civil society organisations can create the national discourse needed to arrive at this change. These organisations should constantly engage with the government in order to develop practical strategies, both at government and non-governmental levels, to engage with this task of justice system reforms.
• Public education and awareness regarding justice reforms
It is necessary for school and adult education to include material on the present state of justice institutions and ways by which they can be improved. Constant public seminars and discussions should also be held regarding how to achieve the needed reforms.
• Citizens’ movements
Women, student and other movements should develop ways of engaging in the task of improving justice institutions.
• Academic community should contribute data that encourages discussion
Through research and education, Sri Lanka’s academic community should contribute to the task of justice system reforms. Research on the relevant institutions could contribute the necessary data and also encourage public discussions, assisting the development of enlightened opinions for achieving positive changes.
• Legal education institutions must spread awareness of crisis
The legal education institutions for law students, as well as for judges, prosecutors, and lawyers should contribute to the development of relevant study curricula, which will help students understand the enormous crisis of the legal institutions in Sri Lanka, and thereby contribute to resolving these problems. The existing legal education is extremely backward, particularly in the area of constitutional law education and the studies on the legal system. Law students should be encouraged to develop a critical approach to the understanding of law and justice institutions so that they will be able to understand the existing impasse and contribute to a better understanding of what needs to be done in improving the institutions of justice.
• International community
The international community, in its efforts to help improve human rights in Sri Lanka, should give priority to the development of justice institutions. In particular, those organisations and countries dealing with transitional justice and reconciliation should improve their understanding of the manner in which Sri Lanka’s justice institutions have contributed to past conflicts and violence in Sri Lanka.
• Introduction of new technology in courts
The technological facilities, such as digital recording of evidence and proceedings, and the computerisation of all aspects of record keeping at the courts should be introduced as soon as possible. While the cost of obtaining such technological facilities is meagre, the benefit that they could bring to the courts—particularly to acquire greater efficiency and reduce delays—is enormous.
• The need for a Declaration of Victim’s Rights
The crisis in the judicial institutions acts adversely to the rights of victims of crimes and human rights abuses. In the search for justice, victims get victimised again and again. The distorted justice system acts in favour of the perpetrators of crimes and human rights abuses. Victims have an uphill task, from the very inception of the process, where obstacles are often placed to prevent even the filing of complaints at police stations. They are also further victimised by demands of bribery and corruption at all levels of the justice system. They often do not have the right to information about the investigations and other processes related to trials. Extraordinary delays expose them to threats to their lives and liberty and also threats to witnesses who speak on their behalf. In any case, when the ultimate result comes many years later, the very purpose of adjudication is lost and even a verdict in favour of the victim means little. The search for justice often turns out, for the victim, to be an exercise in futility. Thus, a clear statement of the rights of the victims at the police stations, at the prosecutor’s office, in the Courts, and also at penal institutions should be clearly stated. Such a Declaration of Rights of Victims should be used in the education of all involved in the justice processes and also the general public.