| by Kishali Pinto Jayawardene
(October 8, 2012, Colombo, Sri
Lanka Guardian) These
are cataclysmic times marked by complete public cynicism regarding the value of
the law, when the Judicial Service Commission has been unrelentingly attacked
by the state media and its Secretary complains publicly that there are fears
for the security of even ‘the person holding the highest position in the
judicial system' (see Daily Mirror of September 29th 2012).
Enlightened law reform now
redundant
Perhaps however, through the
extremity of the crisis, we may indeed hope that a newer form of critical
thinking may emerge regarding the hugely dangerous nature of the political
authoritarianism that now confronts us as well as our own failures which may
have stemmed the tide at an earlier point of time.
Certainly, the law has been
rendered at naught. Reformers who earlier argued that the focal point of change
was enlightened law reform, whether in relation to civil liberties or general
governance, must now take a step back and concede that this, by itself, is a
superficial gloss. The actual issue of injustice superimposed by what a friend
and colleague recently referred to as the ‘patronage system' replacing the Rule
of Law, will not be addressed by mere law reform. Necessarily,
our thinking has to delve much deeper into fundamental problems with our
current political order.
Criminals running rampant
Take the recently touted Witness
Protection draft law for instance. Would any thinking person believe that the
horrendous breakdown of law and order and the negation of the legal system in
imposing accountability on criminals and rights abusers who manage to threaten
witnesses against them and even kill these unfortunates on occasion, will be
corrected if this draft law is enacted? Hardly, one would think. To be
effective, a Witness Protection system must be handled by competent officers
with security of tenure and completely independent from the police structures
and from political interference, at the minimum.
But what do we have? Criminals
(including Ministers who instigate crowds to attack court houses) roam the
country at large protected by political patronage with the police helpless to
stop them. Would a Witness Protection law offer any solace against these
rampant law breakers? The question is self explanatory. It will be just another
glorified law on our statute books for this government to parade before the
world as marking yet another milestone in its record. This travesty is a bitter
mockery of what the law should mean to ordinary people in this country.
Pervasive problem with
accountability
The patronage system that has now
pervaded every sphere of our administrative, policing and legal process is a
matter that affects the majority and the minority communities equally. As this
column has repeatedly emphasized, torture and cruel, inhuman or degrading
treatment is practised against ordinary Sinhalese, Tamil and Muslim people by
police and prisons officers though the motives may differ. As documented
research studies have shown, these motives include personal spitefulness on the
part of those in power, personal or professional greed. When victims are brave
enough to invoke the law to obtain redress, they and their family members
become targets of further attacks by law enforcement officers themselves. In turn,
these officers are protected by the politicians. The enactment of the Witness
Protection draft in its present form cannot change this dynamic.
What is needed rather is
increased public demand for complete overhaul of the criminal justice and
policing systems coupled with a well drafted law protecting witnesses as well
as complainants. For this, the delinking of the Department of the Police from
the Ministry of Defence is essential. The recommendations of the Lessons Learnt
and Reconciliation Commission in that respect have been predictably brushed
aside by the government. It was not to be expected that this concrete change in
policy would be easy. Strong public opinion to that effect is therefore needed.
Instead of an Attorney General subjected to political pressures, an Office of
an independent Prosecutor (appointed by consensus of all parties in Parliament
and with the salaries of its officers chargeable on the Consolidated Fund)
needs to thereafter handle the prosecution of these cases.
Challenging the government
Predominantly, the impact of the
1978 Constitution has been pivotal in the ineffective functioning of the
criminal justice system. The Constitution privileges emergency law over
ordinary laws, including the normal criminal procedure, penal law and
evidentiary rules, and in so doing, bypasses the principle of the presumption
of innocence in favour of emergency law.
In a wider constitutional
context, the head of the executive is effectively placed above the law by
virtue of Article 35(1) of the Constitution and therefore cannot be called to
account for any omission or commission even if blatantly unconstitutional. This
constitutional bar has been primary to the denial of accountability.
A serious push for change needs
to be demonstrated through a common front that will challenge this government
at each of these levels. It is encouraging that such common thinking is now
increasingly being evidenced through public protest movements in cities and
village communities. We can only devoutly hope that this would achieve the
necessary critical mass leading to change in Sri Lanka, filling a vacuum left
by a spectacularly useless political opposition that can only take refuge in
pathetic bleats of endless complaints against the government. These are
cataclysmic times marked by complete public cynicism regarding the value of the
law, when the Judicial Service Commission has been unrelentingly attacked by
the state media and its Secretary complains publicly that there are fears for
the security of even ‘the person holding the highest position in the judicial
system' (see Daily Mirror of September 29th 2012).
Enlightened law reform now
redundant
Perhaps however, through the
extremity of the crisis, we may indeed hope that a newer form of critical
thinking may emerge regarding the hugely dangerous nature of the political
authoritarianism that now confronts us as well as our own failures which may have
stemmed the tide at an earlier point of time.
Certainly, the law has been
rendered at naught. Reformers who earlier argued that the focal point of change
was enlightened law reform, whether in relation to civil liberties or general
governance, must now take a step back and concede that this, by itself, is a
superficial gloss. The actual issue of injustice superimposed by what a friend
and colleague recently referred to as the ‘patronage system' replacing the Rule
of Law, will not be addressed by mere law reform. Necessarily, our thinking has
to delve much deeper into fundamental problems with our current political
order.
Criminals running rampant
Take the recently touted Witness
Protection draft law for instance. Would any thinking person believe that the
horrendous breakdown of law and order and the negation of the legal system in
imposing accountability on criminals and rights abusers who manage to threaten
witnesses against them and even kill these unfortunates on occasion, will be
corrected if this draft law is enacted? Hardly, one would think. To be
effective, a Witness Protection system must be handled by competent officers
with security of tenure and completely independent from the police structures
and from political interference, at the minimum.
But what do we have? Criminals
(including Ministers who instigate crowds to attack court houses) roam the
country at large protected by political patronage with the police helpless to
stop them. Would a Witness Protection law offer any solace against these
rampant law breakers? The question is self explanatory. It will be just another
glorified law on our statute books for this government to parade before the
world as marking yet another milestone in its record. This travesty is a bitter
mockery of what the law should mean to ordinary people in this country.
Pervasive problem with
accountability
The patronage system that has now
pervaded every sphere of our administrative, policing and legal process is a
matter that affects the majority and the minority communities equally. As this
column has repeatedly emphasized, torture and cruel, inhuman or degrading
treatment is practised against ordinary Sinhalese, Tamil and Muslim people by
police and prisons officers though the motives may differ. As documented
research studies have shown, these motives include personal spitefulness on the
part of those in power, personal or professional greed. When victims are brave
enough to invoke the law to obtain redress, they and their family members
become targets of further attacks by law enforcement officers themselves. In
turn, these officers are protected by the politicians. The enactment of the
Witness Protection draft in its present form cannot change this dynamic.
What is needed rather is
increased public demand for complete overhaul of the criminal justice and
policing systems coupled with a well drafted law protecting witnesses as well
as complainants. For this, the delinking of the Department of the Police from
the Ministry of Defence is essential. The recommendations of the Lessons Learnt
and Reconciliation Commission in that respect have been predictably brushed
aside by the government. It was not to be expected that this concrete change in
policy would be easy. Strong public opinion to that effect is therefore needed.
Instead of an Attorney General subjected to political pressures, an Office of
an independent Prosecutor (appointed by consensus of all parties in Parliament
and with the salaries of its officers chargeable on the Consolidated Fund) needs
to thereafter handle the prosecution of these cases.
Challenging the government
Predominantly, the impact of the
1978 Constitution has been pivotal in the ineffective functioning of the
criminal justice system. The Constitution privileges emergency law over
ordinary laws, including the normal criminal procedure, penal law and evidentiary
rules, and in so doing, bypasses the principle of the presumption of innocence
in favour of emergency law.
In a wider constitutional
context, the head of the executive is effectively placed above the law by
virtue of Article 35(1) of the Constitution and therefore cannot be called to
account for any omission or commission even if blatantly unconstitutional. This
constitutional bar has been primary to the denial of accountability.
A serious push for change needs
to be demonstrated through a common front that will challenge this government
at each of these levels. It is encouraging that such common thinking is now
increasingly being evidenced through public protest movements in cities and
village communities. We can only devoutly hope that this would achieve the
necessary critical mass leading to change in Sri Lanka, filling a vacuum left
by a spectacularly useless political opposition that can only take refuge in
pathetic bleats of endless complaints against the government.
 These are cataclysmic times marked by complete public...){kind=link}