The lost meaning of legality
At one time it was common for lawyers and judges, and even some politicians, to boast about Sri Lanka¡¦s long tradition of law, of judiciary and of its legal profession. Books have been written on the history of its modern legal system; however, they are hardly read today. In their place, in the corridors of courts, in the chambers of lawyers, and even in general conversation are just curses about an accursed system in which legality has lost its meaning and citizens are reduced to zeroes.
The law in Sri Lanka today is an exercise in futility. After 31 years of the 1978 Constitution, it is not even possible to recognize what is law and what is not. When the executive president placed himself above the law, there began a process in which law gradually diminished to the point of no significance. This is unsurprising. The constitution itself destroyed constitutional law, by negating all checks and balances over the executive. When the paramount law declares itself irrelevant, its irrelevance penetrates all other laws. Thereafter, public institutions also lose their power and value.
The consequences would be comical were they not life threatening. Take the whole debate on the 17th and 13th Amendments to the Constitution. Debate goes on endlessly about these amendments because of an underlying false assumption that a constitutional amendment to an irrelevant constitution is a matter of some significance. There is unwillingness to accept that the grafting of a living branch to a dead tree brings life neither to the branch nor to the tree.
Today, underground elements have taken over the functions of law enforcement agencies, guided by the institutions of administration of justice. For example, if a debtor does not pay back his loans, the creditor may turn to a reputed criminal to get his money back. The criminal is able not only to get the money back, but also to do so quickly, whereas the legal process is so beset with delays that a creditor may have to wait years and spend more money than what is owed to have the same result. The criminal is far more efficient in this setting than the legal process.
Politicians too rely more on criminal elements than they do on legal agencies. Every election is a contest between criminals supporting this or that party. Instead of a democratic process to persuade voters about policies for the improvement of their lives, there is a coercive one to intimidate voters about the risks of not choosing this candidate or that.
When there is a loss of meaning in legality, terms such as ¡§judge¡¨, ¡§lawyer¡¨, ¡§state counsel¡¨ and ¡§police officer¡¨ are superficially used as in the past; however, their inner meanings are substantially changed. Those who bear such titles no longer have similar authority, power and responsibility as their counterparts had before, when law still had meaning as an organising principle.
For instance, under normal criminal procedure in a society based on the rule of law there is an obligation to investigate all crimes, and the methods of investigation are standardised. Now there is no such obligation in Sri Lanka. Where investigations are carried out, they are done so manipulatively. If someone desires to destroy another person, completely bogus inquiries can be conducted. The criminal investigation process ceases to be a mode of maintaining law and order, and becomes a mode through which to victimise and terrorise citizens.
The diminishment of the lawyers¡¦ role is also indicative of the loss of meaning of law. Today, even constables run roughshod over lawyers who intervene on behalf of their clients at police stations, or in magistrate courts. Bribing policemen is a better method for getting bail than following procedures and insisting on legal rights. Questioning police illegality will only provoke harassment of the client as well as of the lawyer him or herself. When the law loses meaning, the quality of legal practice naturally diminishes. No one will waste energy on futile exercises. If people can be arrested, detained and punished without trial, without recourse to the protection of the Criminal Procedure Code, then lawyers too can do no more than look for methods that are outside of the normal process. In this way their role too ceases to have legal meaning.
The judiciary is the biggest loser of all. The conceptual basis of judicial independence has been completely displaced in Sri Lanka. In the early years of the constitution¡¦s operation, judges, lawyers and citizens still had thinking and behavioural patterns from earlier times that acted to buffer the courts against its impact. Now that resistance has been greatly diminished. As the system has adjusted itself to the executive presidency and everything that it entails, it has been emptied of significance.
The lost meaning of legality can be illustrated with reference to the government policy to abduct and kill alleged criminals¡Xnot those criminal elements working with politicians, but those identified as criminals to be eliminated for political advantage. The method of killing is, like the collecting of debts, now cheaper, quicker and less risky than going through the courts. The police, military or anyone acting under them, including other criminal elements, are assured of impunity because of the secretive manner in which killings are conducted and the many protections afforded to the perpetrators. This is revealed in two incidents that occurred during 2009.
An assistant coordination officer working under the centre for management of the Ministry of Disaster Management and Human Rights was abducted from his house. After receiving frenetic calls on his behalf, the minister made telephone calls all over and managed to locate this person in the custody of some police; it was the minister¡¦s intervention alone that saved him. The police accused the person of being a dangerous criminal and a leader of a criminal gang. They also, according to reports, stated that they found a firearm and ammunition in his house. The minister himself had to make a public statement condemning the kidnapping.
In another case, Ravindra, a school-going son of the director of the Colombo Criminal Investigation Division (CID), had a quarrel with another schoolmate named Chamie. When Chamie and a friend Nipuna were having tea, Ravindra came and tried to provoke a fight. When the two left the teashop and were walking towards their boarding house, a police jeep followed them. The jeep turned and blocked their path. About four persons with firearms got out of the jeep. They held Chamie against a wall and put a pistol to his head, and another to that of Nipuna. The latter shouted to let go of Chamie and to take him instead. Then, these policemen took Nipuna in the jeep to the house of Ravindra. He was told to get down and forced to crawl. While he was crawling, he was beaten with poles. The mother of Ravindra, wife of the director of the CID in Colombo, allegedly stood on his body and asked, ¡§Do you know my weight now?¡¨ After that the police took Nipuna to the Paliyagoda CID, where the director himself allegedly joined in, threatening to charge him with possession of bombs, and telling him that the only way to avoid the charge was to sign a statement. In this case the boy¡¦s life was saved due to quick intervention from his family, who reported the matter to the Inspector General of Police (IGP) and other authorities.
Not only is it institutionally more convenient to kill, but also the very notion of killing as an illegal act has been lost upon the persons responsible for this policy. When the Sinhala BBC service interviewed the official police spokesman on the killings, the correspondent asked how the victims of killings are treated as criminals when in fact they are only suspects in alleged crimes. The spokesman said that according to the police, they are criminals and not suspects.
According to the law, anyone at or before the stage of interrogation is merely a suspect, and cannot be named as an accused. A person is named as an accused only when the charges are filed before courts; however, the official 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 the power to convict, through killing. Thus, the presumption of innocence is no longer of any significance, and nor is judging a person and imposing punishment any longer the sole prerogative of the judiciary.
The lost meaning of legality coinciding with the rise of extrajudicial killings under the pretext of crime prevention is not merely confined to the work and reasoning of the police themselves. It has also taken a sinister shape in the magistrate courts, where in most instances magistrates declare ¡§justifiable homicide¡¨ purely based on the police¡¦s own incident reports. Thus the police spokesman told the BBC that obviously no such killings of criminals are taking place in the country because the judges have confirmed that these are justifiable homicides.
When magistrates conduct inquests and other inquiries, they are expected to follow the legal procedure in the country. The Criminal Procedure Code obligates investigations into all suspicious deaths, particularly in cases where the police conduct is suspicious. It is the duty of the magistrates to ensure that proper legal process is carried out in all cases of suspicious deaths, including that independent investigating units, which are able to resist the pressure from police of local areas, should carry out these inquiries. The failure of magistrates to perform this duty is a further illustration of the loss of meaning of legality in Sri Lanka.