A Statement by the Asian Human Rights
Commission
On July 3rd 2013, President Mahinda Rajapaksha
published a gazette that authorized the armed forces to engage in “the
maintenance of public order”. Last week, he announced a new ministry under the
title “the Ministry of Law and Order”. By these two acts, the Sri Lankan
civilian police have been virtually reduced to nothing, and their function –
which is to maintain law and order – has now been handed over to the armed
forces.
The exact wording of the gazette notification
from July 3 is as follows:
“BY virtue of the powers
vested in me by Section 12 of the Public Security Ordinance (Chapter 40), I,
Mahinda Rajapaksa, do by this order shall call out all the members of the Armed
Forces specified in the First Schedule hereto, for the maintenance of public
order in the areas specified in the Second Schedule hereto.” ( for
more details)
The schedules include the army, navy and the air
force, operating in every area of Sri Lanka.
Now the whole country is placed under emergency
under the national security law and the armed forces can operate in the entire
country for the purpose of “the maintenance of public order”.
The maintenance of law and order within the legal
framework of Sri Lanka is the function of the police, and the task of the armed
forces is to defend the country against external enemies.
The functions of the police and the functions of
the military are completely different. The police do not deal with an enemy. The
police deal with the civil society and assist in maintaining law and order
within the framework of the rule of law. The operating framework of the police
is the rule of law. The operating framework of the armed forces is the military
law. These two things are so completely different.
The police, in carrying out their functions, have
to do everything on the basis of the written law in the country. In fact, their
sole activity is to ensure that the law of the country is obeyed by all.
In getting the civil society to comply with the
law, the manner in which the police would act is also prescribed by the law.
Every act that the police do has to be undertaken only within the framework of
the prescribed law.
What happens when the armed forces enter into the
maintenance of law and order is that their framework of reference is not the law
but the commands of their superiors. The commanding framework is the military
law. The hierarchy that the military take their commands from and obey is the
hierarchy of their respective forces, namely the army, navy and air force.
When the police act in order to maintain law and
order, their work is directly under the control of the judiciary. Every act they
do, such as taking down complaints relating to crimes, investigations into
complaints, arrests, detentions, interrogation of persons and filing charges,
all have to be reported to the nearest magistracy. There is an unbreakable link
between the magistrate and the police. This link also brings everything to
center around the courts. The ultimate master of this process is the magistrate
and the magistrate is answerable only to the higher courts.
When the military enters into the maintenance of
law and order, the place of the magistrate and the courts become completely
irrelevant. The military operating in the streets do not have to report their
actions to the courts; nor are they obliged to take directions from the
magistrate at every step that they take. In short, in this scheme of maintaining
law and order, the magistrate is not the king pin. In fact, the particular
persons who lead the armed forces units are masters to themselves, answerable
only to his military superiors. If he does anything wrong, action could only be
taken under military law.
What this means is that in Sri Lanka now, both
the law and the courts have lost the place that they had within the normal
administration of law and justice. Legality has to now been defined in terms of
military legality. And justice cannot be understood within the normal framework
of the administration of law but as “military justice”.
The demonstration of this was made at
Rathupaswela, Weliweriya. Bringing the military to Rathupaswela took place under
this new gazette notification from 3rd July 2013.
Many things that at first surprise everyone, such
as the military conducting an inquiry into the alleged killings and other
alleged violations of law and human rights, and calling citizens to come to the
army camps to record statements instead of going to police stations, now become
quite logical in terms of the “new order” brought about by this gazette
notification. In the future, this kind of action will enter into every aspect of
life. The familiar system of the operation of law has thus been displaced
now.
In light of this, what happened by way of the
removal of Chief Justice Dr. Shirani Bandaranayake is better explained. In this
setup, the independence of the judiciary and notions such as the separation of
powers have lost significance. Such notions will now live only in the fantasy
world of legal academics such as Dr. Mark Cooray. The reality has changed and
the world out there, from a legal point of view, is now a different world.
It has been the problem of the lawyers and even
some judges and other intellectuals that they could not understand the emergence
of this new order despite everything that has happened since 1978, and even
after the adoption of the 18th Amendment to the Constitution. Despite a few
voices, like the Asian Human Rights Commission, pointing to what was happening
over many years, Sri Lanka’s elite and the educated classes wanted to live in
their own illusions or delusions.
The mere existence of courts or even the police,
the wearing of wigs, lawyers carrying new law reports and statutes, various
addresses that are made in the higher courts to ‘my lords’ and ‘my ladies’, all
kinds of gestures – such as promises to have inquiries or trials – are merely a
façade. This was pointed out by the Asian Human Rights Commission a few years
ago, when it published “The Phantom Limb: Failing Judicial Systems, Torture and
Human Rights Work in Sri Lanka”.
It is time for the civil society to wake up and
move away from the worship of the phantom limb. The moment of truth has arrived.
Now the police in Sri Lanka is the military and the experience that the people
of the North and East are going through is now also the universal reality of
everyone living in all areas of the country.
