A Book Review Sri Lanka: Impunity, Criminal Justice and Human Rights
By Basil Fernando
ISBN: 978-962-8314-48-5
Pages: 164
A Comment By Tapan Bose
(April 15, Hong Kong, Sri Lanka Guardian) 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. The book provides us an insight into “abysmal lawlessness and the zero status of the citizens”, the militarisation 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 these countries. These countries might have adopted constitutions that granted basic fundamental rights to all citizens and ratified various international human rights covenants. Yet among the ruling elite of the post colonial countries of South Asia, the ruling elite continued to remain rooted into 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 enormous investment by the UN and other international agencies in the propagation, education and training in Human rights, the vary basic of these rights are still not available to the people of the countries of South Asia.
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 some of their commitments to uphold personal freedoms of the citizens. 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 example the return of the Guantanamo Bay detainees to mainland USA and bringing the detainees under the US civilian law.
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"In Sri Lanka, whether one is a business man or a politician or a judges 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 return to the “Arthashastra”, 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."___________________
Basil Fernando argues the 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 might 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 in all probability would be overturned by the judiciary. However, the picture in the “non-rule of law” countries is very different.
The institutions of rule of law equal rights for all, equality of gender which were grafted by the British colonial rulers and subsequently introduced into the constitution of Sri Lanka had failed to transform the system of criminal justice and the country’s actual political and legal operations. The various attempts to provide “Human Rights Training” to the law enforcement agencies and the lower judiciary similarly 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 that the failure was not because of absence of laws, but rather the unwillingness of the judicial officers to discharge their duty some time for fear of inviting the wrath of the executive and in other cases because of the caste and class prejudices of the judicial officers themselves.
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 in spite of its “modernisation” 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 but it is strengthened by the fact that the local political establishment itself is based on policing institutions.
The island has experienced forty years of civil conflict. Beginning with two insurrections in central and south Sri Lanka in the seventies and the eighties led by the JVP and the emergence of the Tamil militancy in the north in mid-eighties, the country has been in a state of civil war. The criminal justice system of Sri Lanka which was based on the 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 tries to seek justice. Unfortunately, Sri Lanka’s judiciary and the human rights community have failed to honour the justice seeking poor people of the country.
Today, in Sri Lanka nobody feels safe. 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 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 return to the “Arthashastra”, 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.
Tapan Bose is a well known Indian journalist, film producer and a political activist
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