by Kishali Pinto Jayawardene
Take action according to law
At one level, such a perception is understandable in a country that has been wracked by conflict for many years. This week’s judgment by one of Sri Lanka’s High Courts (as reported in a Sinhala daily newspaper) handing down harsh punishments to three police officers who had been accused of abducting and killing a person, points to stern judicial action enforcing the Rule of Law in its commonly understood application. The judicial position taken in this decision is that torturing and killing a suspect without taking legal action against such a person cannot be approved in any circumstances. In the area of civil and political rights, this is basically what the Rule of Law is all about. No complicated constitutional explanations are really required to explain this principle any further.
To draw further lessons from this decision must, of course, be put aside for a later date and must obviously depend on a meticulous examination of the facts and the judicial reasoning in relation thereto. That said, this is not the only judgment emanating from our lower courts in which a rare and decreasing number of judges have had the courage to articulate established principles of law regarding accountability.
This case is, of course, only one of several thousand other cases that are languishing in our legal system, caught up in laws’ delays and absence of state will to ensure justice to Sri Lanka’s victims from the eighties onwards and quite irrespective of ethnicity.
The judicial role in its primary form
In this commonly perceived sense of the Rule of Law, if the judiciary in this country is allowed to perform their tasks freely and with the natural independence that they must possess in line with their office, much of this hue and cry that we hear regarding international war crimes will be muted. If such an eventuality were to take place, probably the unhappiest would be the ultra-nationalists on both sides of the ethnic divide.
These may be the Weerawansas who are within, nurtured as they are by forces whose local political base thrives on ultra-nationalism or those Sinhalese and Tamils living in foreign climes who write regularly and passionately about the love that they feel for their country (as well as the hate that they feel for all those whom they dislike), while disdaining to actually return and contribute to its development. If the legal and justice systems in Sri Lanka return to a measure of democratic functionality, it is they who would be equally bereft of their shrill protestations which mask sheer self interest and little else.
The undermining of the judiciary by the executive
The problem is however that even when we have had good judgments and good judges, (barring the occasional unscrupulous scoundrel that we have been unfortunate enough to be foisted with), it is the executive which has consistently and deliberately undercut and undermined the practical effects of such decision making. In the eighties and nineties, we had Executive Presidents virtually instructing the police to ignore Supreme Court orders and even promote some of those erring officers. So while our law books were replete with skillfully crafted jurisprudence which, at one time made Sri Lanka of increasing note in the Commonwealth, many of these decisions were of literally no effect in the practical arena.
This is not to say that all these judgments were endowed with uncritical value; some of them were adventurous in their forays into executive accountability and others perhaps, assessed practical questions of responsibility a tad too harshly. Judges are, after all, only human. Yet, by and large, we could have been proud of our justice system in its general upholding of the Rule of Law. Is it possible to affirm that same faith now? While one or two judgments may be to the contrary, is it possible to firmly deny that the increased authoritarianism of the executive has diminished the independence of our judiciary?
Land rights and the Rule of Law
This is simply quite the same in regard to the applicability of the Rule of Law in other contexts. Good examples in recent times are the reported evictions of thousands of persons in the name of development without due regard to their rights, whether in areas surrounding Colombo such as Slave Island or in the Kalpitiya islands.
The Rule of Law requires that such persons holding valid legal documents to their lands cannot be evicted in such an arbitrary manner. There are numerous judgments to this effect and some of them by Sri Lanka’s most distinguished judges stating precisely this. What value are those judgments now?
In any event, this country’s legal system relating to land is characterised generally by a serious inability to safeguard the property rights of the population, particularly where land acquisitions are concerned.
An absence of systematic revision of a number of pre-colonial statutes that govern land use, distribution and acquisition together with the lack of a national lands policy clearly defining the role of the State where land protection is concerned, have been key contributory factors to this. Women have been most distinct victims in this regard.
These issues are far more complex where land rights of thousands of persons displaced by decades of conflict in the North-East as well as those still affected by the Southern conflict in the mid eighties are concerned. At one point, we saw problems faced by thousands of landowners whose lands were situated on the respective traces of planned expressways in Sri Lanka, particularly the Southern Expressway.
Absence of a Right to Information law puts us to shame
These problems are now being replicated a thousand fold as this country heads towards accelerated development with minimum accountability.
As much as the recent deluge made much of our newly built roads crisscrossing the country (including the much hypedA-9) into miserable mudholes, we are entitled to ask as to who will be benefited most from such ostensible development? Are we talking here of the politicians into whose pockets the commissions will go or of the ordinary people who have to wade through mud to get to destinations? Or, as was seen recently on the Southern Expressway, suffer seeing their children die when newly built bridges collapse on their heads? These are relevant questions surely to ask ourselves?
A Right to Information law underscores the Rule of Law in a most profound sense. Such a law would have given us access to money being allotted for multi million dollar development projects. In its absence thereof and with the reins being firmly held by a coterie of politicians with no viable opposition and largely deadened public opinion, it is quite simply a situation where the poor and the marginalized will be strangled in every sense of the word. The forming of coalitions by those who will be directly affected in order to publicly protest against such unconscionable moves in the name of development indicate that these people are now well aware of what might befall them.
As to what good these protests will do, still remains to be seen. In the meantime, it is high time and more that we discarded the notion that the Rule of Law is applicable only if some pathetic individual is caught by an army soldier or a police soldier.
As the times go on, we will see how absurd such a notion is, when applied to our own lives and to the lives of those around us.
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