Tapan Bose
A book review
Sri Lanka: Impunity, Criminal Justice and Human Rights
By Basil Fernando
ISBN: 978-962-8314-48-5
Pages: 164
March 2010
The book Sri Lanka: Impunity, Criminal Justice and Human Rights, authored by Basil Fernando and published by the Asian human Rights Commission, is about Sri Lanka’s descent into utter lawlessness. The book is not a chronicle of events, but provides an insight into the country’s “abysmal lawlessness and the zero status of the citizens”, the militarization of the state, the bypassing of the constitution, and the levels of impunity that the executive enjoys. The author inquires into how such a situation could arise in Sri Lanka, where the institution of parliamentary democracy was introduced nearly eight decades ago.
Basil Fernando tells us that the very foundation of universal human rights, which is based on the concept of “equality for all” and “equal treatment before the law”, remains an alien notion to the ruling elite of many countries in Asia. These countries might have adopted constitutions granting basic fundamental rights to all citizens, and ratified various international human rights covenants. However, the ruling elite of the postcolonial countries of South Asia remain rooted in the region’s feudal and caste-based systems of governance and justice. The sad reality is that even after sixty years of the adoption of the Universal Declaration of Human Rights, and an enormous investment by the UN and other international agencies in the propagation, education and training in human rights, the very basic of these rights are still not available to the people of these countries.
One of the sad realities of the post 9/11 world is that some of the most developed democracies of the western world have also abandoned their commitments to uphold their citizens’ personal freedoms. Peoples’ rights to privacy and freedom of movement are being curtailed in the name of “national security”. However, in the democracies of the West, there are possibilities for citizens to challenge these actions of the state and force the states to revise its positions; for instance, the return of the Guantanamo Bay detainees to mainland USA and bringing the detainees under US civilian law.
Basil Fernando argues that developed democracies function within the framework of “rule of law”. In these polities, the institutions of law and justice are well developed and cannot be dismantled or bypassed at will by the executive or any other organ of the state. In these countries, while the executive may get away with suppression of the basic rights of the citizens in the name of “national security” for a short period, the citizens would challenge any attempt to prolong these violations in the courts, and these attempts would in all probability be overturned by the judiciary. However, the picture in “non-rule of law” countries is very different.
The institutions of rule of law, together with the principles of equal rights for all, which were grafted by the British and subsequently introduced into the constitution of Sri Lanka, failed to transform the criminal justice system and the country’s actual political and legal operations. Similarly, the various attempts to provide “human rights training” to the law enforcement agencies and lower judiciary, achieved very little.
Through the narrative of the case of Gerard Perera, a victim of police torture who was subsequently murdered for testifying in the court against his torturers, Basil says, “Perhaps the biggest lesson that was learnt from Gerard Perera’s case was that all inquiries into police misconduct stop at the level of the Officer-in Charge of the police station”. Nothing came out of the lengthy legal battle against the police in Gerard Perera’s case. Today his widow and other members of his family are scared for their own safety. The book contains many such narratives of Sri Lankan citizens’ search for justice through the judiciary and the failure of the judiciary to deliver justice. As Basil points out, the failure was not due to the absence of laws, but the unwillingness of judicial officers to discharge their duty for fear of inviting the wrath of the executive, or due to their caste and class prejudices.
In fact, it is the narrative section of the book that exposes, through the words of the victims, the real nature of the prevailing system of social control that is not based on law, “but on constant creation of fear, particularly among the rural population”. As Basil points out, despite its “modernization”, Sri Lankan society still remains predominantly rural. In the rural areas the police play a big role. Though the power of the local police may not be much, it is strengthened by the fact that the local political establishment itself is based on policing institutions.
The island has experienced 40 years of civil conflict. Beginning with two insurrections in central and south Sri Lanka in the 1970s and 1980s led by the JVP, and the emergence of the Tamil militancy in the north in the mid 1980s, the country has been in a state of civil war. The criminal justice system of Sri Lanka, which was based on British common law, was jettisoned for effective control of “terrorism”. The argument was that the crimes of the terrorists could not be proved in a court of law as no witness was willing to come forward for fear of retribution. Special laws empowering the security forces with extraordinary powers made a travesty of justice. The security forces became the investigator, the judge and the executioner. The unfortunate part of this was that while the elite accepted this transformation in the interest of safety from “terrorists”, the poor had no option but to accept this system which condoned murder by the state. The only silver lining is that it is also the poor people of Sri Lanka who despite this abysmal situation have from time to time raised their heads and aought justice. Unfortunately, Sri Lanka’s judiciary and the human rights community have failed to honour the justice seeking poor people of the country.
Today, nobody feels safe in Sri Lanka. There is an elected president. The election to the parliament has just been held. Yet this is the country where the main opposition candidate in the presidential election was summarily taken away by the military police and is now being forced to face a military court martial on trumped-up charges. In Sri Lanka, whether one is a businessman or a politician or a judge or a media person, no one escape the scrutiny of the intelligence wings of the state. The most powerful organ of the state is the intelligence apparatus of the government. This is a return to the “Arthashastra”, the ancient Indian treaties on governance written by Chanakya. The advice of Chanakya to the Prince was that the success of the regime depended on the system’s ability to get the subjects to spy on each other and constantly report to the state.
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Tapan Bose is a well known Indian journalist, film producer and political activist.
