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Sri Lanka: Impunity, Criminal Justice & Human Rights: A Review

Aug 20, 2010 2:49:38 AM - thesundayleader.lk

‘Sri Lanka: Impunity, Criminal Justice & Human Rights’, Asian Human Rights Commission, Hong Kong, 2010.

There’s nothing that is so clearly perceived, and deeply felt, as injustice. (Adapted from ‘Great Expectations’ by Charles Dickens)
The fundamental idea in the concept of justice is fairness (John Rawls, ‘A Theory of Justice’)

This is not an unproblematic work. The front cover bears the name Basil Fernando but, sometimes (31, 34 & 37), he is referred to in the third-person. The hostility to Rajiva Wijesinha may have begun with difference in values (or their absence) but has become personal rather than remaining ‘positional’. Statements are attributed without reference being provided: “Michael Roberts has described” (35); the chief justice “stated categorically” that internally displaced people are outside the legal jurisdiction” (69), presumably like those in legal limbo in Guantanamo. One suddenly reads (73), “this conference” and is bemused. President J. R. Jayawardene announced that the time had come for each Sri Lankan to look after her / his own security (118) but the source for this startling abdication of state-responsibility is not cited. Instances of state brutality and the miscarriage of justice are reported but specificities, such as date and source, are not always furnished. The brief historical sketch (95 onwards) would have been better placed earlier. There’s also a tendency to over-use (and misuse) currently “in” terms such as narrative and discourse.

Impunity from the law is a matter of degree, and Fernando places Sri Lanka within that group of countries where accountability is at a minimum. (Aristotle: the law should govern, and those in power should be its servants.) The Asian Legal Resource Centre, the Asian Human Rights Commission and others have concluded that “what exists in Sri Lanka today is a situation of abysmal lawlessness, resulting in the zero status of the citizen” (18). Titles and descriptions – lawyer, judge, attorney general’s office etc – exist but are devoid of significance (61). The population has become inured, desensitized: one more murder doesn’t make any difference (83). Though the Island appears to be modern, the mentality of the majority (the author claims) remains rural, feudal and accepting. That torture is necessary for public security, and that torture victims are bad (111) is an inbuilt perception. Hundreds of Tamils are detained in camps outside the framework of the law (20). The term “security apparatus” refers not only to the military and policing structures but to “a whole political system and a way of life” (26). Anyone voicing criticism (presumably, Fernando included) is not seen as a person with good intentions, but as one who has “fallen into traps set by people whose sole aim is to destroy the nation” (29). Resignation and cynicism are pervasive. When individuals and groups raise questions, it’s they who are investigated – not their concerns and complaints! The provisions of the Prevention of Terrorism Act cannot be now justified, but continue to be used to exert state power (26).

This (alleged) alarming state of affairs is attributed by Fernando mainly to the armed conflict and, even more culpably, to the executive-presidential system of government. Insurgency (from 1971) helped to create the present security apparatus (27). In the late 1980s, under emergency laws, extrajudicial killings were carried out, and at least 30,000 disappeared (42). The protracted war with the Tamil Tigers consolidated the security apparatus in the name of “national security” – the security of the citizen didn’t matter. Judicial “independence is seen as an obstacle to the defeat of terrorism”: the view Britain adopted during the Second World War that true victory is assured only if the courts functioned independently is absent (11). Military victory has led not to the dismantling, but to the further strengthening, of authoritarianism (19). In the North and East, this is done on “the pretext of preventing the LTTE from re-appearing (25). However, it is the executive presidency of the 1978 constitution that lies at “the heart of the political, social and psychological problems of Sri Lanka. It has turned into a political monster…The executive president is a person freed from any and every kind of check and balance… He is a power unto himself” (William Pitt, Earl of Chatham, in a speech to the House of Lords, 1770, said that unlimited power is apt to corrupt those who possess it, but it is Lord Acton’s formulation that is often quoted: “Power tends to corrupt, and absolute power corrupts absolutely”.)

The police are brutal and criminal, corrupt and “known for extreme extortion” (138). Citizens do not see them as protectors but as a force to be feared; avoided or placated. The final recourse of a citizen is the judiciary but “justice”, as described here, seems to be a remarkable net which entraps small fish while allowing the big ones to swim free.

The foregoing brings me to another “problem”, namely the suggestions and recommendations made by the author. Forensic training given to the police and human-rights education is a waste of resources (7): there must be institutional reform of the police, as of the prosecution department and the judiciary. Anti-corruption agencies must be developed outside the policing system (13). Elsewhere, the author states that there is “scandalous” domination of justice by the police but, on the same page (10) adds that the police force is dominated by those with political power and influence. (Appointments, promotion and transfer are not on the basis of seniority and efficiency but on political subservience and support.) If so, how can there be “institutional reform” when the powers-that-be are against it? When a fish goes bad, the rot starts at the head, and then infects other parts: the people take example from, are influenced and affected by, their (political, religious and social) leaders. The responsibility lies with them: lilies that fester smell far worse than the ordinary weed (Shakespeare). Or, as Chaucer commented earlier, if gold, supposedly a “superior” metal, deteriorates, then iron (the ordinary people) has little chance.

The answer (stated but not clearly developed) is, “the people”: hope lies in, and with, them. It is they (emphasised) who can change the nature of politics, but for that to happen, their awareness, values and priorities must be changed. For example, the people have been persuaded that those who voice concern and criticism; those active in human and civic-rights movements, are enemies of the nation, often in collaboration with foreign interests. It will take a long time, and much effort, to bring about positive change in the people. When beliefs and opinions are based on reason, they can be altered by the use of reason and evidence, but very difficult when they are “blind”, “deaf” and stubborn, being based on emotion and ignorance: all the more reason for the work to be sustained with resolution and patience.

I may be mistaken but to describe Sri Lanka as a Gulag island (26) seems an overstatement. The majority of citizens probably get on with daily life; if aware, then with resignation to the state of affairs described in this book. But (agreeing or outraged) the issues Basil Fernando raises should be considered. It will not do to go into (what in psychology is termed) “denial” or to work oneself up into a paroxysm of outraged patriotic passion. Justice is the basis of a civilized and decent society. It is the citizens’ ultimate refuge and repose. In Robert Bolt’s ‘A Man For All Seasons’, Thomas More (Lord High Chancellor of all England) is advised to neutralise a man who may be a threat to him, but one who (to More’s knowledge) had not broken the law. More responds that we are creatures of the forest. If the trees (the laws) are cut down, as and when it suits us, we will finally be treeless (law-less); bereft of protection; vulnerable and fearful. Then there’s the point made by John Stuart Mill (1806-1873) in his essay, ‘On Liberty’: What kind of people will they be who do not (a) think independently, (b) discuss freely, and (c) express themselves fearlessly?

And, since individual units make up the whole, what kind of country (in this case, Sri Lanka) will it be?

by Charles Sarvan