Restoring confidence in the criminal justice system

| by Shanie

"We are the dead, short days ago,

We lived, felt dawn, saw sunset glow,

Loved, and were loved, and now we lie

In Flanders fields!

Take up our quarrel with the foe:

To you from failing hands, we throw

The torch; be yours to hold it high.

If ye break faith with us who die

We shall not sleep, though poppies grow

In Flanders fields!" – John Macrae, after witnessing his friend killed in 1915 during WW1

(January 15, Colombo, Sri Lanka Guardian) Five news items published in our newspapers within a couple of days in the course of last week reflect the political culture of impunity that prevails in our country today. The first two referred to the killings of Lasantha Wickrematunga and Dharmaratnam Sivaram, both well known journalists who had been openly critical of the political and military establishment. Sivaram was a popular The Island columnist who wrote under the pen name ‘Taraki’. He was abducted in 2005 by men in a white van opposite the Bambalapitiya Police Station and his brutalized dead body was found near Parliament the next day. The Police arrested a Tamil militant as a suspect but eye witnesses reportedly did not identify him. The charge has been made that an ex-LTTE group from the East aligned with the government was responsible for Sivaram’s tragic killing. Lasantha Wickrematunga, then an outspoken Editor of the Sunday Leader, was stopped at Attidiya on his way to his newspaper office in January 2009, not far from a military camp at Attidiya, and gunned down. Both Sivaram and Wickrematunga had received death threats earlier but refused to bow down or leave the country for safer pastures. It is over six years since Sivaram was killed and over three since Wickrematunge was assassinated; the killers remain free and there is no indication that they will ever be brought to trial and justice meted out.

Only strong public opinion can bring about a change in our criminal justice system that has undoubtedly sunk to new lows. This cannot be left to politicians, even well-intentioned ones. Once in power, they find it expedient to subvert the system to suit their own narrow political ends.

Contrast this delayed justice with the next two items of news from the much maligned West which, we are told, has no business to be preaching to us about the rule of law and justice for the victims of war. In November 2010, a Sri Lankan man who was running a ‘corner shop’ in England was about to close his store for the night when a four-member gang walked in and started an altercation with him. They had come in when the local pub, where they had been drinking, had closed and had wanted to steal alcohol and tobacco from the Sri Lankan man’s convenience store. This father of four resisted and was stabbed to death. Within an year, the Police had concluded their investigations and charged four white men in the Birmingham Crown Court for murder and robbery. Investigations revealed that they had walked into the store only to rob and had no intention of committing murder. In December 2011, just thirteen months after the crime, the Jury found the men guilty of murder and the Judge sentenced all of them to a minimum of twenty years in jail - 92 years between the four of them. A fifth, the driver of their get-away vehicle who took no part in the crime was sentenced to six years in prison. The Judge observed that the men were guilty of a mindless murder and deserved no leniency. Murder investigations were completed and a conviction obtained within thirteen months.

The fourth news item is also from England. A drunk, another white man, had walked into a Co-op super-market in Cambridge one afternoon and spotted two Asian members of the staff. He walked up to them and inquired as to their national origin. When one of them said he was from Sri Lanka, the drunk had sneeringly called him a Tamil Tiger. The Police were called and the man charged for racial harassment. He was found guilty in the Cambridge Magistrate’s Court and sentencing is to take place on 27th January. The man has apologized for his insulting behaviour. All this has happened within a month of the incident.

Contrasting dispensations of justice

If we are genuinely patriotic citizens, we need to ask ourselves whether this would have been possible in Sri Lanka. Not just the speed with which the criminal justice system has worked but charging a person for calling another a ‘Tamil Tiger’. How many times have we heard a Tamil, any Tamil, being insultingly referred to as a ‘kotiya’? We think nothing of it and accept it as perfectly normal. The West obviously has a different view as to what goes to promote reconciliation and national integration.

The fifth news item to which we wish to draw attention is a more interesting one. A Sunday newspaper last week published a photograph of a prominent member of the governing coalition dancing on New Year’s Eve at a leading five-star hotel with a young woman whose arms were thrown round him. The caption for the photograph was ‘Ball for Karuna, Jail for Fonseka’. The caption said it all. Sarath Fonseka, the Army Commander who led the troops in decimating the LTTE, has to serve six years in jail on flimsy and dubious charges, while Vinayagamoorthy Muralitharan, better known as Colonel Karuna, leads the good life with complete impunity for his criminal past. We now know that he flouted our country’s immigration laws when he travelled to the United Kingdom using a Passport issued in a false name; that he was convicted in England and served a jail term there. We also know that he was the Eastern Commander of the LTTE when the war crime of killing six hundred policemen who had surrendered took place. It was also during his time as the Eastern Commander of the LTTE that the massacres of hundreds of civilians, including worshippers at a Kattankudy Mosque took place. The LLRC in their report have quite rightly recommended a full investigation into the circumstances of the killing of the surrendering policemen.

The LLRC have also reported on the activities of a Deshamanya (no less!) Inaya Bharathy, henchman of Colonel Karuna, and warlord in the Ampara District. Like his mentor, Iniya Bharathy also seems to enjoy complete immunity for his activities in the District. Is it any wonder that the government has little credibility among the local population of the North and East when they promote and are sustained by the activities of such warlords as reported by the LLRC.

The three tiers of law enforcement

The news reports that we have quoted sadly reflect the pathetic state of law enforcement in our country. There are three tiers in law enforcement in any democracy – the Police who perform the investigative role, the Attorney-General’s Department who act as the prosecutors and the Judiciary who have to ensure that justice is meted out fairly and equally. Law enforcement fails when just one of these arms fails to function as they should. But there is a danger of total collapse when two or three of these tiers lose their independence. In Sri Lanka, over the years, there has been creeping politicisation of all three tiers with the result that the people are fast losing confidence in the whole criminal justice system. It is this credibility factor that leads to captions in the photograph that we referred to earlier.

Only strong public opinion can bring about a change in our criminal justice system that has undoubtedly sunk to new lows. This cannot be left to politicians, even well-intentioned ones. Once in power, they find it expedient to subvert the system to suit their own narrow political ends. Nor can it be left solely to religious leaders, even if their spiritual and moral leadership is vital to sustain public opinion. It is, as the late H L de Silva once told the Organisation of Professional Associations, only the professionals who can and who must provide the leadership in ensuring that law enforcement in Sri Lanka ceases to be in the hands of politicised officers. It is the professionals who can stand up to brazen violations of the law and to the lack of law enforcement in such cases. They have to create a body of public opinion that will expose the sycophantic officers who condone violations of the law at the behest of their political masters. As de Silva said, law enforcement suffers when there is public apathy and acquiescence in brazen acts of lawlessness.

It is for this reason that the LLRC has also recommended the establishment of an independent Police Commission. It may not totally eliminate the politicisation of the Police Service but it will strengthen the hand of those Police officers, of whom there are many, who wish to enforce the Rule of Law in our country. Apart from an independent Police service, the country also needs a fiercely independent Attorney General’s department and Judiciary, the other two arms, to restore public confidence in the impartiality of the criminal justice system. Justice it is said must not only be done but also seen to be done. The former Attorney General and the former Chief Justice, immediately upon retirement, accepted appointments as Advisors to the Cabinet and to the President respectively. Other judicial officers have received offers of state appointments which were promised while they continued to sit as Judges. Members of the immediate family of sitting Judges have received lucrative appointments in the state sector. People holding such office in our justice system need to keep higher standards if they are to maintain not only their own credibility and the dignity of their office, but more importantly, to maintain the country’s faith in the independence and impartiality of the criminal justice system.

In October last year, following the killing of Bharatha Lakshman Premachandra, the Asian Human Rights Commission issued a statement referring several acts of lawlessness in the country. We end our column this week with the concluding paragraph of the AHRC statement: "Obviously it is not enough to ‘cry for the country’. It is time to come to a reckoning about what has, in fact, happened. The sooner the people realise that the very foundations of their beliefs have been lost the better it will be for all. Then more sane and sober reflections will emerge and it is these reflections that will give rise to mature approaches to fight for a law-based society."