Deconstitutionalising, deinstitutionalising and the denial of legal remedies as a modern technique of terror

Sri Lanka Human Rights Watch | The Diary of Terror – Fourth Report - 01st Feb. 2010

(February 02, Colombo, Sri Lanka Guardian) The deprivation of a sense of citizenship by a process of deconstitutionalising, accompanied by deinstitutionalising and the deprivation of legal remedies has become a more sophisticated form of terror in the modern state which is even more effective than the direct use of physical torture and other methods on citizens.

Deconstitutionalising

What is meant by deconstitutionalising is the process of making constitutionalism a meaningless concept. The primary way of doing this is to place the head of the state above the law.

Once the head of the state is placed above the constitution and he can do anything irrespective of whether it contravenes constitutional provisions or any other legal provision, constitutionalism can be displaced. The head of the state can be placed above the law by declaring that the courts have no jurisdiction over him whatsoever. If the head of the state contravenes constitutional provisions the courts cannot make the head of the state answerable for such transgressions . Once this can be done the head of the state can stop the operation of some of the most vital provisions of law that might impede upon his power.

For example, if the law provides that in the making of appointments or the dismissal of persons certain legal processes have to be followed, the head of the state can displace the operation of that law by doing the contrary. As he cannot be questioned in a court of law then the fact that he has contravened the law would cease to be a matter of importance.

When this type of practice is done over a period of time every form of restraint that is placed on the head of the state in order to protect the rights of the people can be done away with. In this event there is a paradox. On the one hand the law still remains in the books. There are no amendments to the law which has displaced the constitutional protection. However, by a series of practices the head of the state and his agents are able to act as if these provisions of the law do not exist. By these means the citizens become aware that once the head of the state and his agents through various practices engage in acts that would normally be considered illegal, there is nothing that could be done about it and therefore there is no protection for anyone if the head of the state decides to act in that manner.

The decisions of the head of the state to act in a manner which contravenes the law may directly relate to civil rights or property rights or may, in fact, relate to them indirectly. The direct deprivation of civil liberties may be, for example the authorisation of extrajudicial killings by the head of the state. Under various pretexts the head of the state may institute various regulations which have the impact of authorising the security forces to do acts which would otherwise amount to acts of blatant breach of the law. This may include the extrajudicial killings of persons, the arrest, detention and torture of individuals for indefinite periods, the denial of fair trial, the authorisation of practices of admissions of confessions as part of valid evidence and endless other ways by which citizen’s rights may be deprived. Over a period of time such anti terrorism or special emergency laws may become so much a part of the normal law of the land that the various practices of protection which existed in the constitutional law of the country may be relegated to an insignificant place.

Though some may keep on hoping that particular situations which gave rise to anti terrorism or special emergency laws may disappear and that normal laws will reappear again, in fact, under one pretext or other these specials laws which suspend the normal laws will remain in operation.

Deinstitutionalisation

What is meant by deinstitutionalisation is the process by which various practices inbuilt into institutions within a rule of law framework are displaced.

Under a normal institutional framework within a country there are laws, rules and procedures which regulate the functioning of those institutions. The public is well aware of the way that these institutions are supposed to function and learn to adjust to the new functioning within the overall framework of the law. Working within this framework provides the citizens with certain safeguards with regard to their rights. The citizens dealing with a public institution would know what to expect from it.

The process of deinstitutionalisation is the way of doing away with the adherence to the legal process within the public institution. By such removal of the practices which constitute its normal behaviour the citizen is deprived of the possibility of knowing what to expect from the institution. In fact, long term impressions about the expectations of the institutions are removed and a new set of impressions is created by which people lose any confidence in the rational behaviour of the institutions.

The institution thereafter begins to function on the basis of pressures that are exercised by those in power. Anything that the citizen wants to achieve through the institution has to be done by reference to those pressure points or avenues of power rather than by a rational process where legal procedures will regulate the manner in which the institution works.

By such deinstitutionalisation it is not only the public that is affected but also are the officers of the state who are operating these institutions. They too would not know how the appointments happen, how the transfers take place or how the punishments are meted out or how dismissals take place. All these things are no longer subjected to any kind of rationalised procedures. On the other hand they all depend on the manner in which the power is used within the country.

Thus, the officers of a institution, if they wish to remain within the institution and even to have their positions safeguarded have to learn the habit of getting favours from their superiors who have influence with those in power. Thus the entire institution no longer functions in a manner in which a public institution is supposed to function within the regulations of the law but by unwritten codes of conduct that are developed in terms of power. Thus, within such a context both the public officers as well as the citizens are powerless and unable to have any kind of expectations which are based on the conception of entitlements or rights.

When law is replaced by terror

When deconstitutionalisation and deinstitutionalisation takes place, then the idea of legal remedies becomes an absurd concept. The law may provide that a person who is aggrieved on some issue has a particular kind of remedy through this or that court. However, when the working of that process is directly affected, or one might say polluted by the process of deconstitutionalism and deinstitutionalism which has infected the system, such legal remedies’ cannot actuallt be achieved.Thus, although there is a legal entitlement to a remedy the achievement of such may become impossible.

For example, a candidate of an election who feels that his victory has been deprived by illegal means such as by tampering with the vote has a legal right to go before the court in order to annul the election. However, where deconstitutionalisation and deinstitutionalisation has taken place the chance of success in achieving in that action is so remote that he may not even believe that there is any real possibility of success.

This denial of a legal remedy can apply to almost every issue such as arrest, detention and other forms of the abuse of power. On the one hand violations of rights take place and on the other there is deep belief built into the consciousness of the citizens that if they try to resort to obtaining a remedy that would be defeated by a process of deconstitutionalisation and deinstitutionalisation that has taken place within their society.

Thus, this creates a sense of terror and hopelessness within the citizen who is unable to think of any kind of retaliation against brutality and the abuse of power and the terror that is unleashed by the state upon him.

Sri Lanka is a clear example of of a place, where citizen face terror due to a process of deconstitutionalisation and deinstitutionalization has taken place. Last presidential election and its aftermath has once again demonstrated the powerlessness of citizens of such a society where law is displaced by terror.