Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
It can be said that the beginning of the 20th century was a period of primary schooling in Sri Lankan politics. Particularly since 1931, with the introduction of adult franchise, some people emerged from within Sri Lankan society who aspired to play political leadership roles. None of them were prepared, as the country had been ruled by foreign powers for a long period. Anyway, prior to that the idea of exercising political power through representatives was not known in Sri Lanka. Politically speaking, all the people who became willing candidates were completely new to the game.
Most came from elite families who had acquired power and positions during the reign of the colonial rulers. If the colonial status had continued for longer, many of them would have played no other role than being civil servants for the British administration. However, the new opportunities that emerged during this period allowed them to rise above being civil servants and to become leaders.
Everything was new, and among these new things the way to get to power through elections meant that everyone had to find out how to encourage the people to vote for them. The problem was that on this issue there was no previous experience, no traditions nor any old practices to go by.
One easy way to popularity was through the family name. The families that had been controlling large areas through feudal ownership of land had the best chance for such popularity. The family name alone was sufficient advertising. A few others established themselves through their businesses and a very few through their professions.
The only group that was to come to some extent from outside that circle, but not completely, was that consisting of people who represented labour, and their popularity depended on their influence among the workers in different sectors. This group was more open to new ideas and the experiences of others outside the country.
These early searches to gain political recognition so as to be able to catch votes constitute the primary schooling of Sri Lankan political life.
Today, looking back into what many of these people did during this time various theories have been developed as to the causes of the present day problems and conflicts in the country. Sometimes prominent personalities are blamed. However, in judging these personalities it is necessary to consider their confusion as beginners and amateurs in a new field of action. This new field of activity carried with it enormous responsibilities, unlike other fields, such as sport, the theatre and even some businesses. Political action is an area completely different to all other fields of action and perhaps its beginners and amateurs may not have appreciated the consequences of their actions. Many did not have very much time to learn. Politicians of this time had short spans of influence. Only a few lingered for long.
Some dogmas emerged from the statements and actions of early leaders that rather than being dogmas for all time were only expressions of confusion during this early period. But in recent decades different proponents of various issues relating to racial confrontations have treated the positions from leaders of this early period as authoritative. Various statements and actions of Sinhala and Tamil leaders are cited as being the beginnings of contemporary conflicts. Some of these leaders are even thought of as having deliberately contributed to the development of various political tendencies in later times.
All this ignores the fact that their dogmas consisted of expressions with limited value, coming from new students in the field of politics. As long as history is interpreted in this manner with quotes and photographs of various actions, giving them far greater significance than the simple expressions of amateurish political leaders who were in that position simply because of the historical times, their confusion will be treated as a permanent legacy in which all others who were to come later also became trapped.
There are further reasons to treat the politics of this early period with even less significance, due to many factors that have changed within Sri Lanka since that period. Most of the early voters were less literate than their successors. Sri Lanka today is a highly literate society and political literacy is enhanced by the fact that most people can interact with society in their own local languages. The emergence of Sinhalese and Tamil as languages used in social communication makes the people who live now so different to those who lived within Sri Lanka before. The magnitude of this change needs to be grasped in relation to all political issues but particularly in contrasting the early democratic age from the present.
The world today also is witnessing the greatest communication change that has ever been experienced by humankind. There is no way for anyone to push this change back except by way of some global catastrophe like a nuclear war. No political thought of the last century can fail to be reviewed in the context of the present-day communications. Certainly the type of political discourse that took place in that early part of the new period took place in a communication context that is far different from today. Therefore the relevance of all those debates will become even lesser and the greater winds of communicated experience will bear down on what is happening now and what is to come.
It is in the light of these tremendous developments that Sri Lanka’s early political experiences, the primary school experience as it were, turned out to be a retreat rather than advancement in the latter part of the century. The paranoid political leaders of the early generation who came to realise their limitations and their failures instead of retiring from politics tried to destroy the very foundations on which they stood. From confusion they walked to chaos. The 1978 Constitution in particular was a regression from the primary school to the kindergarten. And in that process there were quarrels in which confusion and chaos only contributed to bloodshed, disorder and lawlessness.
While there has been a great deal written and discussed on local political experience in the early part of the twentieth century, very little has been written and discussed about the political experimentation that took place at the latter part of the twentieth century, particularly since the political experiments of the governments that were elected in 1970 and 1977. Old, disenchanted and frustrated political leaders made new experiments based mostly on consideration of their failures. The present-day politics is shaped by these latter-day experiences in the last three decades of the twentieth century. How did Sri Lankan politics regress from its primary school age to kindergarten? This is an issue that is inescapable, although attempts to come to terms with this period are not adequate.
Today institutionally Sri Lanka is in a worse position than it was at the beginning of its adventure out of colonial times. Mere brooding on what those political leaders said or did in that early period will not throw very much light with which to find a way out of the present situation.
I mourn for Prabarkaran also
Following the killing of the entire Liberation Tigers of Tamil Eelam (LTTE) leadership there is a strongly expressed feeling among Sri Lankans, within the country or outside, that their deaths — and particularly that of the leader, Prabakaran — should not be a matter for mourning. I beg to differ!
That there were the most extreme forms of violence practiced by both the rebels and the state forces is the issue of real concern. That the political and legal systems of Sri Lanka have not developed to an extent that it is possible to deal with any conflict, particularly a conflict between the communities living within the country, is a matter that cannot be separated from the way in which all actors in the present conflict have behaved. The test of civilisation in modern times is the nature of the political and legal institutions within which people live and not their so-called traditional cultures. If the situation of Sri Lanka is such that no such civilised political and legal systems exist, the actors for the state and those citizens who have taken to violence must be judged against this backdrop.
This does not remove the moral responsibilities of those who have acted with barbarism either on behalf of the rebel groups or on behalf of the state. Each must answer morally for their actions despite the colossal defects of the political and legal systems within which they have acted. For this each must answer separately. It is not exculpatory for anyone to claim innocence on the basis that such actions were done on behalf of the rebel group or the state if the acts themselves are immoral or illegal, even in the situation of a “war”. However, those who have made moral decisions which are wrong and which may have brought them to the ultimate loss of life due to these very wrongs do not forfeit their human status and therefore they still deserve to be mourned. Prabakaran was a citizen of Sri Lanka and a human being and there is no way of saying in an ultimate sense that he was not ‘one of us’.
I am a Sinhalese by birth and as I reached my adulthood I told myself that this should in no way affect my judgement on anything. In the latter part of my life in particular, I have lived with many races and nationalities belonging to all continents. At no stage has the race or nationality that these other people have belonged to been a matter affecting any judgement, though the ethnic and cultural differences of people have played an important role in the enjoyment and enrichment of each other. And I have asked myself, if this be the case, why should my judgement regarding the communities of my own country be any different to this?
In terms of the strongest cultural and religious tradition of Sri Lanka, Buddhism, perhaps the story of Angulimala is to the point. Angulimala, a bright student, was treated badly by his guru because of a misunderstanding created by jealous rival students. The guru instructed Angulimala to bring him a chain of fingers. The finger hunt resulted in Angulimala having the reputation of being the worst murderer in the region because he killed everyone he met to take the fingers. One day the Buddha confronted him, facing the risk of assassination himself. In the process Angulimala was brought to his knees, made to understand his predicament and change his ways. The moral of the story is two-fold: that Angulimala’s behaviour was conditioned and that despite his atrocious criminal acts, he was still a human being.
This does not imply that the moral and legal wrongs done by the LTTE under their leader should be forgotten or forgiven. All the moral and legal issues of atrocious crimes need to remain the top priority of the national discourse until such time as the whole nation understands their implications, so that measures will be developed in order to avoid their repetition in the future. After the 1971 and 1986 to 1991 rebellions in the south no such discussion took place and attempts at all such discussions were deliberately suppressed. Therefore similar and even worse behaviour happened through the LTTE.
The problem of dealing with moral and legal issues is that no one can take a holier-than-thou attitude. It is not possible to discuss and resolve the moral and legal issues of rebels without discussing the legal and political responsibilities of the state. If the state itself avoids criticism of its own behaviour and has no will at all to change that behaviour through the improvement of political and legal institutions, then the criticism of the rebels will become a farce. Such a refusal to discuss state responsibility can only be a ploy to continue with defective political and legal systems for the benefit of some persons.
Thus, out of the fight against rebels there is the real possibility of the emergence of a state with greater powers of repression that could be used against the entire population. It was the campaign against the communists in Germany that was utilised by Hitler to build one of the world’s worst authoritarian systems. It was the fight against the bourgeoisie and the internal party groups of the left opposition lead by Trotsky that was utilised by Joseph Stalin to create an authoritarian system that was even worse than that of Hitler.
When political and legal institutions fail to live up to required standards, a sub-stream of consciousness from the past can resurface. It was the resurfacing of such tendencies that made the concentration camps possible. Thus, it is not only in countries with less developed political and legal systems that this can happen but even stronger systems can degenerate under certain circumstances. The sub-stream of consciousness from the past in South Asian societies, including Sri Lanka, is conditioned by the laws on repression of the caste system, in which disproportionate and collective punishment is an integral part.
That there was such violent conflict in Sri Lanka is a matter for regret and sadness. That there are no attempts to improve the political and legal systems so as to be capable of dealing with the differences and the conflicts is a matter for greater sadness. That the defeat of the LTTE is being manipulated so badly as to further destroy whatever remains of the political and legal system evokes even worse premonitions for society. How the workers, farmers, the middle class, those who represent dissent and opposition and those who are engaged in providing public information and creating public opinion through the media will be dealt with in the future in Sri Lanka is frightening to think about.
There is no real victory to celebrate, but instead tremendous failures to worry about. And if the artificial celebrations that are organised are meant to fool the people again then these celebrations will, in fact, be glorifications of failure. The last thing that human beings have to rely on is their common humanity and the last thing that the citizens of a nation have to rely on is citizenship. The bonds of humanity and citizenship bind both the fallen rebels as well as fallen soldiers. They all need to be mourned. That is the least bit of decency that anyone can demonstrate. I mourn for all of them, including Prabakaran.
Replacing paramount law with Gyges’ Ring
This is a discussion among several imaginary characters: a journalist, conducting the interview; a senior police officer, who has agreed to speak on the condition of anonymity; a retired judge; a political scientist; and, a philosopher. These imaginary characters do not represent any living persons.
Journalist: In trying to understand our situation, it seems necessary to go back to law, which everyone seems to feel is no longer a matter of great significance in the country. Therefore, it is appropriate to discuss the constitution, which is usually referred to as the paramount law in the country.
Political scientist: We must be careful about language. Nowadays, terms like paramount law may be regarded as Western jargon. These days the talk is about the home grown solution, our own thing, and the like.
Philosopher: That’s an interesting point. Under certain political conditions, words lose their former meaning. Early Greek historians noted that. A writer named Thucydides wrote in The History of the Peloponnesian War about such loss of meanings as a consequence of war, about a kind of confusion, difficulties in talking about things in any sensible way. That is what has happened to the idea of paramount law in our country also.
Retired judge: What has happened is that the idea of necessity has replaced the need for the constitution. Our circumstances have made us forget about the constitution and approach things in a more practical way, as circumstances require, or so they say. Dictates of necessity are more important than any paramount law or, for that matter, any principle. Do not ask me whether I agree with all that. I have got used to the idea that whatever I may think does not matter much. My view is not considered necessary in the present circumstances.
Senior police officer: Our fellows regularly kill bad criminals. No paramount law will allow that. It is against all the principles we were educated on. But what if we do not do this? There will be nothing to make thieves, murderers, and rapists afraid of doing what they wish to do. Of course, you may ask me, what about fair trial? What kind of fair trial can we have? Every problem is so complicated, everyone interferes with everything and nothing gets done. But this way, something is done. Why spend so much money and effort to have nothing done when we can do these things so easily?
Philosopher: Your position is that principles are good only for books and not in real life?
Senior police officer: It’s a little more complex than that. See, to respect one principle, you must respect many other principles. Also, many people need to respect the same principles. Do we have a situation like that? We do not have any agreement on any single principle. Doing things according to principles is not a practical possibility. Does it mean that we can afford to do nothing? As I understand it, the doctrine of necessity means just that.
Philosopher: Now, if I go back to the question of our own home grown solutions, killing prisoners instead of having fair trial, allowing room for bribes and corruption and things like that, for this we should overcome principles, paramount laws and so on? Whatever is home grown should not be discouraged because of alien principles?
Retired judge: This of course is the way that things happen. We, however, have to keep up an appearance that principles still exist and that there is some design in the actions of the state.
Philosopher: What you mean, I think, is that we must make it appear that our home grown solutions are based on greater principles than those western principles that we were used to. If we allow prisoners to be killed without any trial, it is because our own principles tell us that it is better to do it that way. We have some unwritten paramount law, which is superior to any of the constitutions in the world. In our home grown philosophy we can be corrupt and good at the same time. We can kill for greater good.
Political scientist: The Greeks talked about Gyges’ ring. When one wears this ring one becomes invisible. Then you can do whatever you like. You can even rape the queen. Now we seem to have developed a home grown Gyges’ ring. We have replaced the paramount law with it. In that transformation the 1978 Constitution played a very significant role. Perhaps we need to discuss this more.
Philosopher: At this stage, I think it is better to recall the legend of Gyges’ Ring. According to the legend, an ancestor of Gyges of Lydia was a shepherd in the service of King Candaules. After an earthquake, a cave was revealed in a mountainside where Gyges was feeding his flock. Entering the cave, Gyges discovered that it was in fact a tomb with a bronze horse containing a corpse, larger than that of a man, who wore a golden ring, which Gyges pocketed. He discovered that the ring gave him the power to become invisible by adjusting it. Gyges then arranged to be chosen as one of the messengers who reported to the king as to the status of the flocks. Arriving at the palace, Gyges used his new power of invisibility to seduce the queen, and with her help he murdered the king, and became king of Lydia himself.
Political scientist: Now, the moral of the story is that a typical person would not be moral if he or she did not have to fear the consequences of their actions. If anyone can be invisible, it is possible to do things that one may not be willing to do because of bad publicity and other adverse consequences.
Senior police officer: I think I understand this legend and what it tries to say. But, I cannot agree that we should encourage our officers or leaders to follow the moral of this story. If we have to become visible, we cannot do anything. We will become powerless. How can we ask our officers to kill undesirable people, bad criminals, if they have to do that openly? If their wives and children know these things, they will think they are bad people. Ordinary folk need to observe morals. If they know what we do, they will try to emulate us and then there will be more problems. We need to have the capacity to do many things in an invisible way.
Retired judge: Some people might say that what our police officer says is wrong. However, he is simply saying honestly what everybody knows to be happening.
Political scientist: Now, let us go back to our original question. In 1978 when the executive presidential system was created, the president got Gyges’ Ring. We rejected western democracy and created our own thing.
Philosopher: What you mean, I think, is that we replaced the paramount law idea with the idea of the paramount persona. Large, big, tall, fat personae as we see them in ancient statues are really our idea of who the powerful person should be.
Senior police officer: Let us be frank. Do you think that we can persuade people to work for the government and hold high office if they are to be told that they have account for every rupee they spend, that they have to keep books and be audited, that they can’t use their official position to help their family or friends and the like? If we ask our officers to bring every suspect before judges, that they should not torture people who do not give information, or that they have to produce every dead body before a magistrate to have a post mortem, will they do anything? We will have to pay officers who do nothing.
Retired judge: I think what you are saying is that we must be more flexible. We must give people room to exercise power, more freedom. Freedom of those in authority is more important than the so-called people’s freedom. People are free only if they obey rulers and respect rulers.
Journalist: Now I understand why so many journalists are being killed. Since we journalists believe in transparency and accountability we no longer have any place under this new order.
‘Ashokan Persona’ and the rooster coop
Michael Roberts?article, “Some Pillars for Lanka’s Future” is a useful reference in discussing some of the more important contemporary issues in Sri Lanka. Roberts describes an ‘Ashokan Persona’ as follows: “The Big Man (invariably male) has to control every fiddling little thing. My theory therefore highlights a deeply-rooted cultural tendency towards the over-concentration of power at the head of organisations and a failure (if not an ingrained inability) to delegate power.”
Others have articulated the same problem of the ‘Big Man’ in a different way. Aravind Adiga, in his recently published Man-Booker Prize-winning novel, The White Tiger, brings out the idea through ‘the rooster coop’ Adiga explains:
“The greatest thing to come out of this country in the ten thousand years of its history is the Rooster Coop. Go to Old Delhi, behind the Jama Masjid, and look at the way they keep chickens there in the market. Hundreds of pale hens and brightly coloured roosters, stuffed tightly into wire-mesh cages, packed as tightly as worms in a belly, pecking each other and shitting on each other, jostling just for breathing space; the whole cage giving off a horrible stench ?the stench of terrified, feathered flesh. On the wooden desk above this coop sits a grinning young butcher, showing off the flesh and organs of a recently chopped-up chicken, still oleaginous with a coating of dark blood. The roosters in the coop smell the blood from above. They see the organs of their brothers lying around them. They know they’re next. Yet they do not rebel. They do not try to get out of the coop. The very same thing is done with human beings in this country.”
The novelist thereafter explains why the rooster coop was made possible. He attributes it to the Indian conception of family and the system of punishment where entire families of the servant class are punished for any transgression of one member. Asking the reason for its existence and why no one tries to get out of it, he continues:
The answer to the first question is that the pride and glory of our nation, the repository of all our love and sacrifice, the subject of no doubt considerable space in the pamphlet that the prime minister will hand over to you, the Indian family, is the reason we are trapped and fled to the coop. The answer to the second question is that only a man who is prepared to see his family destroyed — hunted, beaten, and burned alive by the masters — can break out of the coop. That would take no normal human being, but a freak, a pervert of nature.
Why is the conception of the rooster coop more useful, perhaps more authentic, in comprehending Sri Lanka’s present context? Discussions of the minority situation in Sri Lanka have been seen more in terms of ethnic and racial considerations reduced to extreme positions. Such discussions do not acknowledge what the majority of people (who do not belong to the ‘Big Man’ category) in the Sinhala community have in common with their peers in the minority communities. The result is an attempt to find specific solutions to minority problems without ever bothering to find a solution to problems that commonly affect the majority of persons belonging to all communities.
From that perspective we can look to the problem of the 1978 Constitution. This constitution was meant to dismantle, or at least to undermine seriously, the rule-of-law system introduced by the British so that the ‘rooster coop’ could resurface. It was meant to remove barriers against corruption, undermine every possible avenue, including judicial intervention to abuse of authority and not to have any system at all except the direct use of force on all, trade unions, and opposition political parties, young radicals looking for new avenues and on everyone else. A further important component was to close the electoral map.
There have been 31 years of experience of this constitution. Its survival was greatly enhanced by the rise of insurgencies. It was possible to deflect people’s attention to the need of repressing ‘the terrorists’ and thereby to ensure that no real democratic challenge was made against the constitution itself.
The present moment is important because after 31 years the people of all communities now have the opportunity to look back at the assault on democracy and the rule of law that has taken place in their country. Everyone is affected. Without finding a solution to this problem there is no way to stop the nation from “going down the palama” to use Michael Roberts’ phrase.
Roberts correctly points out that, “What the Sri Lankan President gives as a constitutional gift, he can withdraw too” the 17th Amendment is an example of this. This remains possible as long as the constitution we have is one that has the worst elements of both worlds. There is nothing that anyone can do, including the Supreme Court of Sri Lanka, to change that.
In any jurisdiction what gives meaning to a constitution is the rule of law. The constitution is the paramount law. However, in a place where the law has little meaning and the supremacy of the law has been removed and replaced with the supremacy of the ‘Big Man’ all that can happen is the continuance of the ‘rooster coop’
Thus, the foundation for the achievement of the rights of all within a democratic constitution is the basis of achieving specific rights for any of the minorities. If the bigger project is abandoned, the associated project of respect for minority rights is doomed too.
In Roberts’ 1994 book, Essays in Exploring Confrontation, he kindly included one of my poems, ‘Yet another incident in 1983’ The poem was based on an actual incident. It was about a family whose car was set on fire during the riots. As petrol was being poured on the car a bystander notices two children inside and removes them. The father comes out of the car, takes the two children and returns to the car and closes the door. The car and the family were destroyed in the fire.
For many years I have wondered who that man was. More and more I began to realise that subconsciously it was I. To be exact, it was an ordinary Sri Lankan, very much like I. We have all perished in the failed democratic project in Sri Lanka. Now, looking back, many of the decisions I have taken ever since have been made under the subconscious influence of the realisation of that failure. If the citizens of Sri Lanka are to have a rebirth that failed project needs to be revived.
Conscientious individual portrayed as traitor
In the present day, the re-imaging of a person from conscientious citizen to traitor can be rapid. The transformation is not in real terms, as in Kafka’s Metamorphosis. The change is simply in the portrayal of the person by the intelligence agencies, with the backing of a section of media. The case of Shantha Fernando is an example of how easily this can happen.
Shantha Fernando was produced before a magistrate’s court in Colombo on 1 July 2009 and, according to a report appearing in the media, he is accused of trying to bring disrepute to the president and armed forces of Sri Lanka, and of having assisted terrorists. He was remanded for a further period of 15 days at Welicoda Remand Prison.
He was arrested on the 27 March 2009 at the airport when he was proceeding to a meeting organized by the World Council of Churches on militarization in Asia. Many persons active in the social movements within the churches were among the participants, from different countries. All the deliberations were in the open and a full report of this meeting has been published and distributed through the Internet. It was no different to hundreds of other meetings held throughout Asia over a long period of time by the World Council of Churches and the Christian Council of Asia, with the participation of persons from other religions, to encourage concern for social problems that are afflicting ordinary folk in the region.
As a participant in this meeting, Shantha Fernando was taking published documents relating to the situation of refugees. The concern for refugees has been part of the global humanitarian movement, particularly since the adoption of the Convention Relating to the Status of Refugees in 1951, and churches throughout the world have played some role in promoting the interests of refugees and displaced persons as a matter of importance in their humanitarian work.
Shantha Fernando has been active in Christian work for a long time. He was a staff member of the Asian Alliance for YMCAs for about six years, and he was based in Hong Kong. During this period he took an enormous interest in the population of domestic workers from Sri Lanka there, who are mostly Sinhalese and who often face problems. He spent his free time on Saturdays and Sundays to help in the formation of a domestic workers?association for the welfare of these workers. Many functions were organized to bring domestic workers together on their holidays. The work he did in this regard still continues through these associations.
To be a person concerned about the problems of others is part of the training and makeup of an individual like Shantha Fernando. Persons like Bishop Lakshman Wickramasinghe of the Anglican Church and Bishop Leo Nanayakara of the Catholic Church were role models in this regard. Taking pride in assisting people in difficult circumstances is taken seriously, and these persons willingly sacrifice part of their time for such work. For them, being human involves being concerned for other humans, particularly those facing more difficult circumstances. By their very orientation they are opposed to every form of violence and seek peaceful solutions to all problems. To speak out against injustice is a method they rely on in order to find peaceful solution to problems, and thereby to prevent the need for use of violence.
Thus, the participation in this meeting was one more similar kind of activity, done out of concern for others. Demonstrating the problems of refugees in order to gain greater support for relief on their behalf is normal, decent human conduct that one would expect from anyone, and in particularly from those who have for a long time taken interest in how to be conscientious persons under difficult circumstances.
However, in Sri Lanka these days such actions are interpreted as being treachery and in violation of anti-terrorism laws. Since his arrest, his friends in the church circles have cooperated fully with the investigators in the belief that demonstrating his innocence would lead to his being released. They actively discouraged any form of campaigning and even legal actions on his behalf, thinking that once all the facts were put before the investigators in the spirit of full cooperation they would understand that he was not involved in anything illegal and that thereby he would be released.
Elie Wiesel, the Nobel Prize-winning Jewish writer who wrote the famous novel Night about the ordeal of Nazi concentration camps, noted that Jews were destroyed not because of the power of Nazis but because of their own illusions. Despite overwhelming evidence that something terrible was happening to them, they sought to interpret events in which a more favourable outcome could be expected for them, ignoring the warning signs. As a result, they got closer and closer to the concentration camps and around four and a half to six million ended up in smoke spread to the air through the chimneys.
The case of Shantha Fernando like several others in Sri Lanka is demonstrating sinister developments where guilt and innocence may have nothing to do with the punishments that may be meted out to an individual. Fate has made these individuals symbols of a transformation that is taking place within the country in which justice, fair play and truth may have no relevance at all. The rest of the citizens who fail to read between the lines regarding such events may pay heavy prices for their own illusions.
When law becomes comic
How much sterile and empty debate people can engage in is illustrated by Sri Lankan debates about the 17th and 13th Amendments to the constitution. Throughout long years of debate, the question as to whether there can be a constitutional amendment when constitutionalism itself doesn’t exist does not seem to have occurred to anybody.
At least the 17th Amendment was an attempt to recreate constitutionalism by indirect means. It aimed to reduce the power of the Executive President in Sri Lanka.
What the experiments in the 17th Amendment proved in the end was what any intelligent person should have known at the very beginning: that when constitutionalism is absent, constitutional change is but a mirage. While there is a lot of bitterness about the failure of the 17th Amendment, there does not exist sufficient realisation that the end result of that Amendment could not have been any better.
In 1978 Sri Lanka left the orbit of constitutionalism known to the liberal democratic world. The document that was adopted as Sri Lanka’s constitution was not a constitution at all when judged in liberal democratic terms.
That “constitution” was mumbo jumbo, correctly described by the late Dr Colvin R De Silva as the type of constitution made by Jean-Bédel Bokassa of the Central African Republic. This comic figure once declared himself the emperor of his country and made a “constitution” to suit his declaration.
Constitutional amendments derive legitimacy as well as vitality only when the body of principles that constitute constitutionalism is incorporated into the constitution. The 1978 Constitution, instead of incorporating such principles, ejected them from the body of the paramount law.
The 1978 Constitution aimed to place the executive outside the law of the country. It freed the executive from the liabilities related to its functions. To achieve that, the “constitution” had to be a document that did not create obligations but gave freedom to act without worrying about legal consequences. The extent to which such freeing from obligations was allowed was demonstrated by the referendum of 1982, which released the government from holding elections for the seats in parliament. Even this terrible joke did not register in the minds of Sri Lankans, including the most vocal persons.
These days there is much talk about the 13th Amendment. There is serious talk for and against it. Some talk with passion and fury about this amendment and it is made out as if some momentous event of hitherto unknown historical importance will take place thanks to it. Some try to make it into a big dream and others try to present it as a greater catastrophe. Some even declare that they will lay down their lives to prevent the realisation of this amendment. No one seems to see the comedy that is being played out around it, yet which should be obvious to anyone who stops to look at the fate of the 17th Amendment.
This brings to mind a story of two neighbours. One neighbour describes to the other that he can pluck thousands of coconuts on his estate. From then on, the other neighbour starts counting in his mind how many coconuts he might obtain from his estate; however, this person does not have any estate to grow coconuts on.
Government policy to extrajudicially exterminate criminals
The killing of alleged criminals is cheaper than going through due process in courts. It is also quicker and less risky to the officers who carry out the operations. In fact, the police, military or anyone acting under such agencies, including underground elements, can assure themselves of complete impunity by choosing the time and place to do the deed. The numbers of persons who have already been subjected to this mode of “justice” in recent times now number in a few hundred. The promise is that all criminals will soon be eliminated through such methods.
In these cases the police reports are more or less the same. The story goes that the police take some persons to discover some weapons or other objects that such persons have divulged are hidden in some place. At a crucial moment, the persons grab bombs or other weapons and try to harm the officers accompanying them. The officers, in turn, shoot them dead in self-defence.
A BBC Sinhala service correspondent asked an official spokesman for the police as to why the police officers do not take precautions when they are taking criminals out for investigations, and how people in handcuffs could manage to attack the policemen. This spokesman told the BBC not to underestimate these extremely efficient fellows, who can do anything despite of handcuffs or other restraints. The creation of this image of criminals being superhuman is also a necessary element in the propaganda supporting extrajudicial elimination of alleged criminal elements.
The BBC correspondent further questioned the police spokesman and asked how they assess these people as criminals when they are only suspects in alleged crimes. True to form, the police spokesman said that according to the police they are already criminals and not suspects.
According to the law of Sri Lanka, anyone undergoing interrogation is a suspect, and not even named as an accused. A person is named as an accused only when charges are filed before courts. However, the spokesman for the police does not accept this distinction. Since what he says represents the official position of the Sri Lankan police, then the police themselves have taken over the power to convict. Thus, the presumption of innocence is no longer a factor of any significance. Nor is the judging of a person and the imposing of a punishment any longer the sole prerogative of the judiciary.
A recent incident illustrates how far this practice has gone. Some people abducted an assistant coordination officer working under the ministry of disaster management and human rights from his house. After receiving frenetic calls on his behalf, the minister telephoned all over and managed to locate this person in the custody of a police group. The police accused this person of being a leader of a criminal gang. They also, according to reports, stated that a firearm and ammunition were found in his house. The minister himself made a public statement condemning the kidnapping.
The horror story of extrajudicial killings under the pretext of crime prevention takes an even more sinister turn due to some practices which have evolved in the courts, where in most instances magistrates declare “justifiable homicide” based purely on the report of the incident as filed by the police. The police spokesman told the BBC that obviously no such extrajudicial killings of criminals are taking place in the country because the judges themselves have confirmed that these are justifiable events.
When magistrates conduct inquests and other inquiries, they are expected to follow the legal procedure of the country. The criminal procedure code obligates investigations into all suspicious deaths, particularly in cases where police conduct is suspicious. Such investigations should be carried out through independent investigating units that are able to resist the pressures from police of local areas. It is the duty of the magistrates to ensure that proper legal process is followed in all cases of suspicious deaths.
As these killings are so well known, it is the duty of the Supreme Court to inquire into the manner in which magistrates conduct such inquiries. Given the seriousness of the situation, the Supreme Court needs to lay down guidelines stating the basic legal obligations of magistrates. It is also the Supreme Court’s duty to ensure proper supervision of magistrates in the carrying out of their obligations.
To an outsider, a policy to eliminate criminals through extrajudicial killings may sound fictitious. However, after over forty years of using police and the military to engage in extrajudicial killings under the pretext of suppressing terrorism, what is law and what is fiction is no longer clear in Sri Lanka. The central task of recreating the authority of law is to deal with the arbitrary use of power, which has become a menace to the country. When the guardians become the violators, it is only the society’s strong reaction to such violations that can pave way for police reforms. If the horror-creating police of Sri Lanka cannot be reformed, then there is hardly any reason to be hopeful for the country’s future.
The type of spokesman the police deserve
It is common in all sensitive cases for the police in Sri Lanka to claim that inquiries are still being conducted and that no arrests have been made. Such claims can be made even after months and years. In fact, no such inquiry may be being carried out, or otherwise a mis-inquiry may be underway.
The latest case of this sort is that of the alleged abduction and assault of Nipuna Ramanayake. Nipuna’s complaint is that a group of officers came in a police jeep and abducted and assaulted him. If the event took place as claimed, then under the Prevention of Torture Act No. 22 of 1994 it would constitute an act of torture. In terms of the Penal Code, the offences to be investigated are kidnapping and physical assault.
A criminal investigation, therefore, needs to be conducted as per the basic elements of these offences. In this case it should not be a complicated inquiry. There is already the medical report of competent judicial medical officers, indicating that there were injuries at the time that they examined Nipuna, immediately after his release from police custody. Nipuna’s own statement and other evidence clearly show that at the time of abduction he was in a normal physical condition. Therefore, the simple inference is that the injuries occurred in the time between abduction and his release from police custody. As for the offence of torture, the statements of Nipuna and others and the medical reports are adequate evidence to charge the accused.
The group of policemen who kidnapped Nipuna came in a jeep that was assigned to the Colombo Crime Division (CCD), which makes the investigation much easier. All vehicles that are given to officers for their official work are obligated under police regulations to maintain charts of all travels. By checking the movement of this vehicle from the time of the kidnapping up to the time when Nipuna was taken to the CCD at Dematagada, it is possible to trace where this vehicle was during this time. If documents have not been maintained or have been tampered with, that is a matter any reasonable investigator can easily detect and deal with.
As for the police officers who came in the vehicle, these must be persons assigned to the CCD director for his work. Therefore, notes relating to their assignments during the day should be in the relevant books maintained by the police. It is to be presumed that the director of the CCD will ensure that all personnel assigned for their tasks are being entered into the necessary books maintained under police regulations. Beside this, the pocketbooks maintained by these police officers would also indicate the different tasks assigned to them and the times at which they carried them out. Once again, if the books have not been properly maintained then even an average investigator will know what inferences to draw.
Besides the police officers, the other alleged suspects are Ravindra Gunawardane, the son of the director of the CCD, and the director’s wife. The director himself is also suspected of committing offences relating to the subverting of justice. All these persons are easily identifiable. Recording of statements and getting necessary specimens for other inquiries cannot be difficult. Fingerprints can be taken inside the police jeep and house where the assault took place. The poles that were allegedly used for the assault are also very important material evidence.
If there is a genuine inquiry and a competent officer or a team of officers is assigned to the task, it could be completed in a very short time. While proving of charges is something that takes place at a latter time, what is needed to make the necessary arrests is adequate evidence to indicate a link to the commission of these crimes.
However, the real problem is the lack of initiative. The official police spokesman’s task, judging by hundreds of other inquiries that have not resulted in arrests and prosecutions, is to create some excuse for delays.
Reducing the function of the official spokesman for the police to allow him to trivialize crime only has a negative impact on the upholding of law and order and maintaining of the rule of law. Perhaps in this respect the Sri Lankan policing system has created the type of spokesman it deserves.
Lack of leadership permits trivializing of crime
The alleged police kidnapping and assault of Nipuna Ramanayake took a new turn when about fifty persons were brought to demonstrate with slogans that the young student Ramanayake is in fact a leader of a criminal gang. Obviously the demonstration was orchestrated to reduce public support for investigations into the kidnapping and torture charges against the police. The demonstrators also are reported to have destroyed posters that fellow students put up in support of Nipuna.
That incident is a demonstration of the manner in which demands for investigation by victims of crime are trivialized in Sri Lanka. The attempt now is to force people to forget the incident and pooh-pooh any public pressure on the authorities to conduct inquiries. Then business will return to normal.
There is a severe contradiction between trying to eliminate criminals, which the government claims is its goal, and the trivializing of crime that has taken place in Sri Lanka over a long period of time. In any intelligent crime-control policy, the building of public opinion against crime is a central component. Enormous resources are spent in societies to teach people from early stages in their lives that crimes have serious consequences. Where the sense of gravity of crime is lost, it is hardly possible to control it.
In a rule-of-law society, there are two major agencies that play a crucial role in keeping social awareness about the gravity of crime. These are the police, who are supposed to investigate all crimes, and the prosecutors, who are supposed to prosecute all crimes. In Sri Lanka, the police department and the attorney general’s department have these roles. Their respective heads must take the lead in keeping an authentic emphasis on the gravity of crime and the state’s capacity to prosecute and punish it.
The trivialization of crime too must be blamed on these persons. Public criticism regarding increases of crime should be levelled at the Inspector General of Police (IGP) and the Attorney General (AG). Their failures should be exposed and public pressure should be built up to ensure that the persons who fill these posts are committed to the control of crime by proper use of their functions as leaders of the investigating and prosecuting branches.
What is happening today is that both the police and AG’s departments are subordinating their authority to the Ministry of Defence. This ministry is creating the attitudes relating to which crimes should be investigated and prosecuted and which crimes should not be investigated or prosecuted. The IGP and AG have surrendered their independent roles in favour of a new administration in which defence has become the leader. Neither Sri Lanka’s constitution nor the rule-of-law system permits this ministry to subjugate the police and AG’s department in this manner.
When executioners have taken the place of investigators and prosecutors, something fundamentally wrong has occurred in the criminal justice system of a country. Public criticism should centre on the IGP and AG for allowing this situation to continue.
The IGP and his deputies: what do they do?
There seems to be nobody to ensure law and order in Sri Lanka. What are the IGP and his deputies doing instead of their jobs?
A policing system is a hierarchical institution. Those at the top have responsibility for the behavior of those in different layers within the institution. It is the job of those who are at the top to ensure that all those below do as expected of them.
Departmental orders lay down the responsibilities of leadership and of supervision. They prescribe intricate arrangements for the maintenance of documents. The officer in charge of a police station is responsible for what happens within it; the Assistant Superintendent of Police (ASP) of an area inspects books, makes visits and takes his own notes, by which he keeps track of the work of all police stations under him; superintendents supervise and guide the work of the ASPs; senior superintendents exercise further monitoring and supervision; and deputies to the IGP look after the entirety of the institution.
That was how it was and that is how it is supposed to be. But now any police officer may think this is just a fairytale. Today, the police hierarchy from ASP to IGP cannot even arrange for the proper transport of an alleged suspect when he is escorted to find some material evidence. The oft-repeated story is that during the journey the handcuffed suspect takes a gun or bomb and tries to attack the police, who in turn shoot him dead.
Are the officers of the police hierarchy incapable of devising a system for the safe transport of criminals from one place to another for purposes of investigation? Surely it is not such a difficult task to design guidelines and instructions about the transport of suspects during criminal inquiries. All over the world such things are done quite safely. It does not require extraordinary intelligence to design and implement such a system; however, Sri Lanka’s police hierarchy has proved incapable of doing this much.
Instead of command responsibility, complete carelessness has spread from top to bottom of the law-enforcement infrastructure.
Take the case of Douglas Nimal and his wife. Nimal was a police inspector who took his job seriously and tried to arrest some persons involved in drug dealing. Some persons at the top moved against him, and finally he and his wife were killed. No one was arrested or prosecuted for killing a law enforcer who was discharging his duties.
About forty years of civil conflict–beginning in the south then spreading into the north and east–created a situation within which public attention drifted from law and order to maintenance of national security. The loss of public scrutiny over the policing system provided a zone within which, instead of law enforcement, other things took priority. The result is the present situation in which the police hierarchy has failed to exercise command responsibility.
In the Supreme Court and high courts there are constant revelations of police tampering with documents. In fact, there are hardly any cases relating to fundamental rights or torture complaints at high court trials where police have not tampered with books and made false entries. In all cases where arrested persons are later extrajudicially executed, the documents in the books are also manipulated. Had the ASPs and those above them exercised their supervisory powers as required by departmental orders such distortions would not be possible.
The police hierarchy is paid with public funds; however, it is not performing its public duties. There has not been sufficient scrutiny of its work in parliament or in the media. If the lawlessness that the country has descended into is to be addressed, the public must ask questions about what the IGP and his deputies are doing. If by not following legal and departmental procedures they are breaking the law, then who is there to safeguard law and order in the country?
Attorney General’s department is a phantom limb
At one time there existed a thing called the Attorney General’s department. Its functions were to provide legal advice to the government on all matters of public interest, and to be the prosecuting agency in Sri Lanka. It still exists in name; however, it has lost its place. Judging by the government’s acts now, it cannot be said to be acting on the basis of proper legal advice. Judging from so many cases that constitute serious crimes but are not prosecuted, it is also not possible to say that there is a genuine and authentic prosecuting agency in the country. Adding to this the filing of cases purely for political purposes and it is also no longer possible to say that prosecutions in Sri Lanka are undertaken on the basis on law.
The demise of the AG’s department is a matter of grave concern because the functions of legal adviser to the government and prosecutor are vital to a nation based on the rule of law. Evidently Sri Lanka is no longer such a nation. The executive can do whatever it wishes. There is no law to obstruct its arbitrary behaviour. It can kill, arrest, detain, kidnap, torture, and arbitrarily deprive freedom of expression and assembly. Above all it can plunder state property and use it for private purposes. The executive can ignore the constitution itself. There is no one to advise the government that all this is illegal. There is also no one to prosecute offenders when the law is violated for political purposes, no matter how blatant the violations may be.
How did the AG’s department lose its way and arrive at its present position of pathetic subservience to the executive? It did not happen within one day. It was a long journey in which the department’s leaders gave in to the wishes of the executive, some due to pressure, but mostly due to opportunism of officers who were too eager to please.
Under the regimes of presidents Jayawardene and Premadasa the AG’s advisory function was ignored. The department did not resist the creating of a monster in an executive presidency with absolute power under the 1978 Constitution. There is no evidence to suggest that the department gave any advice on the implications of this constitution for the rule of law. When Jayawardene started a war against the independence of judiciary, there is nothing to indicate that it openly or confidentially gave any advice on the unconstitutional nature of the government’s interference and the possible adverse consequences.
Throughout these periods the department compromised on all the basic principles upon which it was founded as an institution within the common law tradition. It persecuted political opponents. It fully cooperated in the case against Srimawo Bandaranayake and others who were prosecuted in special commissions. During this time there were also several criminal cases filed against opposition politicians such as Vijaya Kumaranatunga and the present president, Mahinda Rajapaksa, purely for political reasons. Though these cases didn’t end in prosecutions, arrests and detentions were initiated through the department.
The 1982 proposal for holding a referendum to extend the term of parliament for another six years should have shocked the department, but it had no legal advice to offer against this move, which completely destroyed not only the country’s electoral system but also the very basis of law through which government derived legitimacy.
The best test of legal advice is the advice given on constitutional matters. The attempts by the executive to undo the very basis of constitutionalism, as happened under these regimes, should have been resisted by the AG as legal adviser to the government. If that might have led to conflict, the legal adviser should have faced up to it, rather the than avoid it by unconscionable compromises. Had the AG resisted these unconstitutional moves, it would have being a warning of the serious attack on the legal framework of the country. Even if the executive would have persisted in pursuing its illegal moves, it would soon have met opposition from the people, and thus the catastrophe that the nation faces now may have been avoided.
In the late 1980s, emergency laws were used to encourage extrajudicial killings. At least 30,000 persons, mostly from the south, disappeared during this period. The disappearances were caused through regulations that were framed in a manner to make such extrajudicial killing possible. For example, magistrates were deprived of rights to conduct inquests into all suspicious deaths by allowing officers of the rank of ASP and above the authority to grant permissions for burials. As a result, the bodies of people whom police or related persons killed were not brought before magistrates and were buried without autopsies. There is reason to believe that the AG’s department was involved in advising on the draft of this regulation, and there is no evidence at all to indicate that the department in any way opposed it by pointing to the illegality of designing a regulation to cover up mass murder.
When Tamil prisoners were killed inside the Walikada prison in July 1983, officers from the AG’s department participated in the inquest proceedings, not in order to prosecute the offenders, but in order to hush up what really took place. Details of their involvement in this and other such cases have been well documented by several sources. The International Group of Eminent Persons also seriously criticized this tradition of the department of participating in inquiries to protect alleged violators in crimes where state officers are the suspects.
Today the department of the Attorney General is similar to a phantom limb. Like amputees who continue to have sensations that lost limbs still exist, people in Sri Lanka keep on believing that the Attorney General’s department as the legal adviser and prosecutor still exists as it used to exist. What exists today is only the institution in name. In trying to find the causes of lawlessness that prevail in the country, it is necessary to understand the transformation of this department. If Sri Lanka is to return to the rule of law, it will necessitate fundamental reforms to this institution too.
Footnote: This article consists of items that were originally published in the Sri Lanka Guardian online from May to August 2009: www.srilankaguardian.org
