SRI LANKA: A short report on the features of the increasing authoritarianism

Sr Lanka: lawyers protest against undermining independence of judiciary

A Statement by the Asian Human Rights Commissiondem

In her media statement from Colombo on 31 August 2013, Dr. Navi Pillay, the United Nations High Commissioner for Human Rights, said,

"I am deeply concerned that Sri Lanka, despite the opportunity provided by the end of the war to construct a new vibrant, all-embracing state, is showing signs of heading in an increasingly authoritarian direction."

It would be useful to mention what some of the features of this increasing authoritarianism are. The following observations may be made:

1. There is no place in this authoritarianism for law. During British colonialism in Sri Lanka, from 1815 to 1948, law was established as the overall organizing factor in society. There was a law for more or less everything. The operational principle was that whatever any legitimate authority does should be defined in terms of law. It can be said that after over a century of government based on law, law became imbedded in the Sri Lankan consciousness, and therefore a basic foundation for the rule of law was quite settled in Sri Lanka.

However, the constitutional changes introduced in 1972 and 1978, and the events of the last 40 years, have undermined that functional system in which government actions had legitimacy and justifiability. It is difficult to determine what is legal and what is illegal at any given moment. This uncertainty and ambiguity runs into everything, including the criminal law, public law and, to a great extent, property laws.

This uncertainty and ambiguity have also placed the courts in a very difficult situation. The importance of the courts has been undermined to a very significant extent. The overall public perception that has developed increasingly treats the courts as somewhat irrelevant.

The citizen has lost their belief in the possibility of legal redress for wrongs they may have suffered. In fact, the uncertainty of the legal situation also results in ambiguity about what legally recognized wrongs are. As mentioned this has spread into criminal law and public law, as well as the property laws.

Thus, the creation of uncertainty and ambiguity about the law, legal wrongs and legal remedies has permeated into every aspect of life.

2. Resulting from what is stated in the above paragraph, there is also uncertainty and ambiguity about all public institutions. What the parliament is and what it is supposed do are questions that citizens would find difficult to answer. What practical experience shows is that the parliament merely does what the Executive President wants and there is nothing that the parliament can do that the Executive President does not want. The idea of making laws in line with the consent of the people is a notion that does not have even the remotest meaning.

The capacity of the Executive President to do whatever he wants and get a stamp of approval, either before or after such actions, gives the appearance of legitimacy to whatever he does. In fact, even that appearance of legitimacy is not really a requirement, as there is no real capacity to challenge anything on the basis of legitimacy. Thus, even the very notion of legitimacy is not a matter of real significance in many affairs.

3. Undermining of the independence of the judiciary. First of all, what is said above about the undermining of the law and the problems that exist in relation the parliament itself have affected the idea of the independence of the judiciary. Besides that, the system of appointments and the removal of judges from the highest courts have created great doubts in the minds of the citizens, including the lawyers, about what kind of outcome are possible in litigation. The idea of pursuing litigation on the basis of the belief that the final outcome would be in terms of the merits of the case has diminished a great deal. The notion that there are many ways through which political influence can affect what might happen in a case is deeply widespread among the people, as well as the lawyers themselves. The idea that litigation is also a matter of market practices has also gained ground. All this poses questions as to what might be expected from the courts.

4. The displacement of civilian policing. What was said above about public institutions and the manner in which their role and capacity have become ambiguous is starkly revealed by the nature of the policing system in Sri Lanka. Its ineffectiveness is not merely due to the incapacity of the police force itself. Rather, its ineffectiveness is mostly a product of the overall crisis of the legal and political systems. Police officers, including high-ranking officers, are often “powerless”.

It is difficult for any officers to fathom what he/she should or should not do, as extraneous forces often play a role in determining what should and should not be done. For the most part, the actions of public institutions are controlled from outside and there is hardly any practical way for officers not to succumb to these influences.

Besides this, the intelligence services, special security forces and the armed forces themselves are being called upon to engage in actions that, in previous times and under a rule of law system, would have belonged only to the civilian police. These outside forces are directly controlled by the Ministry of Defence and are only accountable to those who hold power within that ministry. The crisis of law and the courts mentioned

A further factor that affects the nature of the police is the ever-lessening importance given to criminal law and procedure. Both in terms of the powers and resources given to the police (particularly from the point of view of budgetary allocations for the actual work of criminal investigations) the police establishment is treated as an institution of the least importance. The Sri Lankan police force today is extremely backwards, both from the point of view of training and capacity, as well as in terms of the space available for it to exercise its functions independently.

One of the consequences of undermining this institution is the extreme use of brutality on suspects by the police. There is a great deal of documentation on the routine torture that is exercised almost on everyone brought into a police station.

Resulting from these factors, there has been a breakdown of discipline within the police establishment. The disciplinary control exercised in former times no longer exists. Higher-ranking officers are very much involved in wrongdoings, both from the point of view of political subservience as well as corruption, as are many of their subordinates. The hierarchy of the police lacks the authority that their forerunners enjoyed in previous times.

This collapse of the policing institution aggravates the situation relating to the law as described in the earlier paragraphs.

5. Political control of the Attorney General's Department. One of the legacies of the British was the Attorney General's Department, which was modeled after the British Advocate General's Office. For a long period of time, this department produced very competent prosecutors and leading lawyers on behalf of the state. They were aware of the basic traditions and guarded their independence. The department developed a very strict protocol in dealing with government ministries. As the chief legal advisor for the government, the Attorney General advised the government on the legality of proposed laws and actions. The whole system was geared to ensure that the government conformed to the law.

Unfortunately this situation has been undone and the process of its undoing went on for several decades. It is now in a state of deep degeneration.

The department is now directly under the Presidential Secretariat. The protocols that guaranteed independence have been abandoned. The department has been brought under direct political control. Prosecutions are filed against political opponents directly under political instructions. On the other hand, indictments that have already been filed on sound legal bases are withdrawn or modified to suit powerful politicians. The Attorney General is supposed to oppose proposed legislation that is illegal and against the rule of law; this function is no longer carried out. Even on the matter of the unlawful removal of the Chief Justice, Dr. Shirani Bandaranayke, the Attorney General's Department went out of its way to support the government. Now the Attorney General has himself filed an action against the Court of Appeal’s judgement against the Parliamentary Select Committee, a judgment that the government refused to carry out. The earlier tradition of the Attorney General not to support the alleged perpetrators in cases of human rights violations, particularly fundamental rights violations, has been abandoned and department lawyers take an active part in opposing fundamental rights applications from citizens. There is a deeply negative impression of the department among the people.

6. The emergence of the all-powerful propaganda machinery of the state. What is being offered in place of legality and legitimacy is a propaganda machinery of extraordinary power, which attempts to convince the people that any action taken by the government is right and that those who oppose those actions are evil. These attacks on any kind of rational opposition are part of a most vicious campaign, unleashed through the media and brought into every house in the country. Many of the government's actions are prepared for beforehand through prolonged propaganda, and this includes attacks on anyone whom the government wants to take action against. The attack on Chief Justice Dr. Shirani Bandaranayake while she was still in office was one such vilification campaign, the likes of which had never been witnessed before. The campaign started with the view to force her out of office on her own. When that did not take place, propagandizing was intensified in order to create the impression that the government was right in what it was doing and that every move taken for the purpose of her removal was correct. The content of such propaganda is viciously manipulative, as is the language used.

The lowest levels of language are used to humiliate opponents. The opponents themselves are not given any opportunity to have their version of events heard. The hate campaigns against opponents are reminiscent of the type of medieval campaigns that we read about in Western history books.

Heavy repression against the free media has also become a permanent feature in Sri Lanka. Assassinations, abductions, forced disappearances, causing of physical harm and threats of assassinations to journalists have created an overall environment of fear and intimidation. Large numbers of competent journalists have left the country to live in exile. Besides journalists, media establishments and publishers have also been targeted in attacks. Creating circumstances that force private media establishments to sell those establishments to persons with close association with the ruling political regime is also a feature of the contemporary situation. As a result of this repression people have lost the opportunity to listen to alternative views on matters of public importance.

The consequences of these radical departures

All these radical departures from what existed in the country have already continued to have extremely disastrous consequences. Some such consequences are as follows:

a) Resorting to direct violence. This direct use of violence is facilitated by various developments. One is a change in the practices relating to arrest and detention. There has been a large-scale practice of killing persons after detaining them. This began in the aftermath of the 1971 JVP insurrection, during which, in general estimations, around ten thousand persons were killed. These killings were not combat killings. People were arrested, often interrogated, and thereafter disposed of. This practice was again continued in the South, from 1987 to 1991. The government appointed Commissions into Involuntary Disappearances, which recorded that there were around 30,000 such disappearances. As the commissions pointed out, the word 'disappearance' during this time meant abductions in place of arrest, followed by interrogations, killings and the disposal of bodies. A similar practice was also carried out in the North and East throughout the 27 year conflict between the LTTE and the government.

In Sri Lanka, the idea of taking political prisoners does not seem to exist (except in rare instances), particularly after the killing of several prisoners during July 1983 Riots. Instead, killing after arrest became a frequent practice. There may be complex reasons that give rise to this situation. The overall approach seems to be based on the fact that that this method is the most convenient and does not carry many logistical and administrative obligations. The whole matter is over within a short time; after the disposal of the body. If political prisoners are to be kept, arrangements need to be made for recording their statement and other matters, and this leads to obligations under the criminal procedure laws. Perhaps the most difficult obligation is to ensure that there is an investigation that could lead to evidence justifying the arrest and detention in front of the courts. On the other hand, when people are made to disappear after arrest, large-scale administrative arrangements are not required. Disposal of persons in this manner also removes the obligation to keep people in prisons. Keeping political prisoners in prison imposes very heavy obligations. There are the ordinary obligations of giving prisoners food, space and facilities for sleep, health and sanitation. Equally important are the heavy security obligations. As political prisoners may have their organizations, there may be attempts to rescue them from prisons or on their way to and from the courts. There are even greater difficulties from the heavy political propaganda that comes as a result of keeping political prisoners. So long as prisoners are in custody there will be agitations for their release from political organizations, human rights groups and the families of the prisoners. During elections, matters relating to political prisoners can weigh heavily against the incumbent government. From the point of view of the media, the existence of political prisoners generates much news and political commentaries. All such complex issues can be conveniently avoided by disposing of persons after arrest.

This method also has the further effect of creating enormous intimidation in the population. Such intimidation deters many people from participating in political agitation and protests. Keeping this level of intimidation high is quite advantageous when maintaining an authoritarian form of government.

The decisions in relation to such extrajudicial killings are left to the security forces or the police. In such extrajudicial killings, the functions of arrest, interrogation, execution and disposal of body are all left to the decision of whoever does such killings. Due process and decision-making by the courts are thus taken away. Of course, the possibility of appeals does not arise at all.

Fabrication of charges

Arrest and detention, sometimes leading to charges being made in courts, sometimes leading to extrajudicial executions, are often done after fabricating accusations without any factual basis. Sometimes such accusations are made by the police or security officers themselves and, on some occasions, false witnesses are found to make some complaints that enable arrest. Sometimes such fabrication of charges is done for political purposes. There are many occasions on which this has been done for other purposes, such as for eliciting bribes or to intimidate persons. Often, charges of drug possession are made on innocent persons when they bring complaints against the police or security forces regarding violations of their rights. The threats of bringing such charges have frequently been used to intimidate persons.

b) The loss of the memory of the law, legal procedures and legal redress. Further consequences include the problems of the legal system, described as a loss of memory regarding law, legal procedures, courts, and other aspects of legal redress. During the period of over a century under colonial rule, a system of law was introduced and, as a result, mental and social habits were developed. During the last 40 years, along with the undermining of the legal process, much of this memory has been wiped out. Lawyers complain about many judges having a much lower quality of legal understanding than in previous generations, which helps to create the crisis of law. There is also a stark degeneration in relation to legal knowledge and ethical practices amongst the lawyers themselves, and it is also spreading to litigants.

In fact, the entirety of the population is losing this memory of the law. With time, such loss of memory becomes much greater. Additionally, extra-legal methods for resolving conflicts develop. Through this, new mental habits and attitudes are formed, which spread to everybody; ordinary people, lawyers, judges, politicians, prosecutors and the like. Thus, while positive knowledge about the law is lost, there is a negative kind of knowledge about doing things by illegal means that is being spread. As a result of this, there is a development of underground and powerful elements, which attempt to intervene to resolve problems through direct violence.

c) The spreading negligence in the machinery of administration. As a result of the loss of the relevance of law, and the loss of law-based administrative practices, negligence has spread to all areas of the administration, including local government administration. In earlier times there were supervisory and monitoring mechanisms inbuilt in all programmes and projects. However, such supervision and monitoring has weakened so much that many negative developments are not noticed and there are no attempts to take preventive action to avoid serious adverse consequences.

Some glaring instances have already surfaced. For example in Mullative, Kilinochchi and Vavuniya in the Northern Province, there are problems relating to severe shortages of clean drinking water. People undergo severe difficulties and there has been an increase in health problems due to poor quality drinking water. Similar complaints about drinking water also exist in the North Central Province and Uva Province, and there are complaints about the large number of cases of chronic renal failure. The problems relating to drinking water in Rathupaswela, Weliweriya (in the Western Province) surfaced recently, caused, it is believed, by the operation of a factory dealing with rubber products, where the release of waste water into the surrounding lands has resulted in increased acidity levels in the ground water. Under the previous administration there were regular checks of such factories because of the possible effect on the health conditions of the people in the surrounding areas. However, such monitoring has been neglected. Also, for several years now, Dengue Hemorrhage Fever has spread to the point where it has reached epidemic level. Earlier there existed an efficient system of mosquito control and other such parasite controls, and significant achievements were made. However, the problems caused by neglect in the present system of administration prevent concerted efforts from being made to overcome this problem.

The efforts to control illegal narcotics have also seriously failed. There are regular reports about the drug trade, which is widespread in the cities, as well as in other areas of the country. The prosperous drug trade operates with impunity and manipulates the already weakened legal system in the country. As a result, drug addiction has become a serious problem.

Associated with this problem is the spread of money laundering. According to reports, Sri Lanka has become a hub for money laundering in the region.

These are only few examples of the manner in which the spirit of neglect has now spread throughout the administration. It is very likely that many other unforeseen problems will occur due to this neglect, in all parts of the country and all areas of life.

d) Unprecedented levels of corruption. The success achieved by the Commission to Investigate Allegations of Bribery or Corruption is very limited. In the past these issues were not such big problems, but now one of the areas in which law enforcement is most ineffective is in relation to bribery and corruption. The present administration of the commission has failed to take any effective action relating to those who are part of the ruling political regime and its associates. The commission is instead being manipulated for political purposes. It is used as part of reprisals against those who are politically targeted by the government. A clear example of this is the action taken against Chief Justice Dr. Shirani Bandaranayake. Corruption has spread to the extent that the country's business sector, including the foreign investment sector, is deeply affected by this problem.

There are reports about many persons being threatened to sell their properties far below value. When so threatened, these persons have no option but to comply. Law enforcement officers are often a part of such corruption networks. The recent arrest of a Deputy Inspector General of Police, who is alleged to have been involved in the killing of a businessman on a contract given to him and a gang that operated under him, is an indication of the extent of the linkage between law enforcement agents and the networks involved in corruption. Many scandals that have come to public notice relating to the stock exchange also manifest the depth of the prevailing corruption. Given the crisis of law explained above, there is no solution to this problem of corruption. It is likely to spread even more and negatively affect all areas of life.

The loss of memory also affects the whole of the civil administration. Previously, traditions were established to ensure rational administration within the civil service. However, all these habits have now been lost due to political manipulation, which the civil servants have been unable to resist. The loss of the discipline that was established through long years of education and development of individuals who personified the best aspects of rational administration will be one of the greatest problems that the country will be faced with in the future.

One of the results of the collapse of the discipline in the civil administration is the large scale brain drain. Educated, well-trained and highly motivated persons who do not want to be a part of corrupt system of administration look for other avenues of employment, which they often find outside the country. This brain drain will also be one of the factors that will create very serious negative consequences for Sri Lanka in the future.

e). Rising intolerance. Undermining the law and administration of justice has provided a base for any kind of fanatic to provoke violence against others. There are often attacks on minority religious groups. There have been reports of attacks on mosques and churches. Hate speech against one religious group by another is also common. Thus, the crisis of law has removed the environment that is needed for tolerance and peaceful coexistence. When government comes under criticism about the failure to prevent such attacks, it makes some public pronouncements about protecting minorities. However, when the whole legal system is in chaos, the government does not have the capacity to do anything beyond making such pronouncements. The provocateurs manipulate the crisis of law enforcement to their advantage.

f). The North and East, and prolonged conflict related issues. The overall crisis relating to the law and system of administration will remain the greatest obstacle for achieving a solution to the specific problems in the North and East, including conflict-related accountability and the reconciliation issues. The displacement of the civilian police, and the replacement of it with military, intelligence services and special security services, have had a profound impact on the situation in the North and East. The government’s propaganda, carried out through its media channels, about the possible return of the LTTE also profoundly affects this situation. If law is not going to be the basis of social organization, then how could the problems affecting the people of these areas be resolved on the basis of equality before the law? The crisis of the legal environment of Sri Lanka is the most fundamental problem that affects all its minorities, including the Tamils. Unfortunately this issue is not being raised with adequate seriousness by the Tamil diaspora, who still want to find the solution to problems in the North and East alone. However, such a perspective is practically impossible to implement as the overall crisis of the legal environment is the unavoidable obstacle in every step of the way to finding a solution to the minorities’ issues. Additionally, those who oppose special attention being given to the minorities’ issues are able to manipulate the crisis of the legal system to the disadvantage of the minorities. The highly provocative political environment in the country could be manipulated to cause disturbances for some time to come.

g) No implementation of the LLRC recommendations. The precondition for the implementation of the LLRC recommendations is the rule of law. As repeatedly shown in this report, the overall crisis of the administration of justice is incompatible with the rule of law. It this incompatibility that effects the implementation of LLRC recommendations, which have been the core issue of the contestation between the government and the international community's demands for peace and reconciliation.

h) Overall negative psychological impact of the crisis of law and administration of justice, and the resulting insecurity of the entire population. The entire population of Sri Lanka is psychologically oppressed due to the environment of lawlessness and the absence of protection through a functioning system of administration. This psychological condition affects the health of the people. While all are very badly affected, it is the children who suffer the most. They lack an environment within which they could develop their personalities on the basis of positive human values. The scars caused by these psychological situations will have a lasting impact on the future of all these children. Students studying in the universities are being adversely affected by this psychological environment. The government often treats the students as a possible threat to security. The highly disturbed environment also prevents a regular way of life for these students and exposes them to many difficulties in engaging in their academic work. The women are especially affected by this environment where insecurity becomes the normal way of life. Thus everyone is facing a traumatic situation all the time and there is no way of out of it.

References

1. Fernando, Basil, Gyges' Ring -- The 1978 Constitution of Sri Lanka, Asian Human Rights and Rehabilitation (AHRC) and Research Centre for Torture Victims (RCT), August 2011
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2011/GygesRingSL.pdf/view

2. Fernando, Basil, Recovering the authority of public institutions - a resource book on law and human rights in Sri Lanka, Asian Human Rights Commission, 2009
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2009/RecoveringTheAuthorityOfPublicInstitutions.pdf

3. Kishali Pinto-Jayawardena and Jayantha de Almeida Gunaratne, Habeas Corpus in Sri Lanka; Theory and Practice of the Great Writ in Extraordinary Times, Law & Society Trust, January 2011
Internet link: (Click Here)

4. Fernando, Basil, The privileging of impunity in Sri Lanka's prosecutorial process and legal system, LST Review- Vol.306 and 307 in May 2013

5. Fernando, Basil, ‘Sri Lanka; The politics of habeas corpus and the marginal role of the Sri Lankan Courts under the 1978 Constitution’, LST Review Issue 275 &276, Vol. 21, September and October, 2010, pp 20-34, Law & Society Trust, 2010.

6. THE IMPEACHMENT Documenting the Rajapaksa Regime's Scheme, Compiled by. Asian Human Rights Commission, March 2013
Internet link: http://www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake/AHRC-PRL-052-2012.pdf/view

7. Fernando, Basil, Narrative of Justice in Sri Lanka: told through stories of torture victims, Asian Human Rights Commission, 25th June 2012
Internet link: http://www.humanrights.asia/resources/books/narrative-of-justice-in-sri-lanka/narrativeofjusticesl.pdf

8. AUTHORITY WITHOUT ACCOUNTABILITY: The Crisis of Impunity in Sri Lanka, International Commission of Jurists Report, 2012

9. WRITTEN SUBMISSIONS ON BEHALF OF THE 12TH RESPONDENT-RESPONDENT ON MAIN ARGUMENTS for the application of the Attorney General in case No: SC Appeal No. 67/2013

10. AMICUS CURIAE WRITTEN SUBMISSIONS ON BEHALF OF THE COMMONWEALTH LAWYERS ASSOCIATION AND THE BAR HUMAN RIGHTS COMMITTEE OF ENGLAND AND WALES for the application of the Attorney General in case No: SC Appeal No. 67/2013

11. SRI LANKA: Rapid fall into Dictatorship, Sri Lanka Chapter, in the Annual State of Human Rights Report of the Asian Human Rights Commission 2012

12. SRI LANKA: International Human Rights Agencies failed to notice the Collapse of the Sri Lanka’s Public Institutions of Justice, Sri Lanka Chapter, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2011

13. Constitutionally entrenched impunity, Sri Lanka Chapter, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2010

14. Abysmal lawlessness & zero status of citizens, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2009

15. The loss of the supremacy of the law, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2008

16. Human rights violations rise further in 2007, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2007

17. SRI LANKA: The Situation of Human Rights in 2006, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2006

18. SRI LANKA: Deliberate neglect of U.N. treaty body recommendations adds to general lawlessness in Sri Lanka, in the Annual State of Human Rights Report of the Asian Human Rights Commission in 2005

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.