By Basil Fernando –

Basil Fernando

As Sri Lanka is to celebrate its 75^th anniversary of Independence on the 4^th of February, the general reaction of the people around the country this year is one of despondency with serious criticisms about the failure of governance in the country. 

The need for thinking through some of the more difficult problems relating to the rule of law and human rights has been a long felt need of all parties concerned over the situation that has been developing in Sri Lanka which has become more difficult due to the current economic collapse, political crisis, and the serious threat posed to the administration of the justice system in Sri Lanka with the serious undermining of the Policing and criminal justice system, and the ever increasing abuse of the law for the suppression of the freedoms of assembly, association, and expression, particularly through the abuse of arrest and detention, the denial of the right to a fair trial, and in general, the disregard for the due process of the law.

SCFR case decision on the security failures

In a recent judgement, seven Judges of the Supreme Court found that the former President of Sri Lanka (Maithripala Sirisena) and a few former high ranking State officials including the Secretary to the Ministry of Defence (Hemasiri Fernando), the Inspector General of Police (Pujith Jayasundara), the Chief of National Intelligence (Sisira Mendis), and the Head of the State Intelligence Service (Nilantha Jayawardena) have failed in their obligations to guarantee security and protection for the people of Sri Lanka and that this has resulted in one of the most devastating security lapses which killed over 270 persons and injured an even much larger number in several bomb blasts directed particularly to places of worship on Easter Sunday of 2019. Observing this situation, the Supreme Court noted: “We must express our shock and dismay at the deplorable want of oversight and inaction that we have seen in the conduct of affairs pertaining to security, law and order, and Intelligence. There are glaring examples of a lack of strategic coordination, expertise and preparedness that need a critical examination as to the way forward. The failures that eventuated in the Easter Sunday attacks and the concomitant deaths and devastation have left behind an indelible blot on the security apparatus of the country and this country which is blessed by a multi-cultural and multi-religious polity cannot be left to the vagaries of these follies and made to suffer, leading to violence, fear, apprehension and uncertainty. These events must recede into oblivion but they remind us starkly of the necessity to effect legislative, structural and administrative changes.” (SC Fundamental Rights 163/2019).

To fulfil this destiny as envisaged by the Supreme Court in Sri Lanka for legislative, administrative, and structural changes, the Government of Sri Lanka and the people will have to find ways if Sri Lanka is to overcome the serious loss of confidence in the international financial markets where the country has been downgraded as it is in a state of default in the payment of its foreign debts. The crisis of governance and the crisis of the economy are thus bound together. 

A historical ruts of the crisis

The popular criticism in the country is that no policies or plans have been presented by the Government or other political stakeholders to resolve multiple questions relating to this situation. The general expectation is that things are likely to get worst rather than to improve in the coming months. 

Although the present situation is bewildering, the country’s collapse into this situation has a long history. Although the country became Independent in 1948 from the British rule, this Independence was nominal rather than substantial and real. From the colonial status, the country changed to an Independent status. The administrative and political structures that were created have not developed enough to ensure the protection and welfare of the people within a framework of rational governance. In fact, Sri Lanka has not evolved into a modern State at any time. The structure of governance which prevailed from around the 9^th Century Anno Domini to the early part of the 19^th Century, before the British took over the control of the country in 1815, was based on the strict segregation of the people on the basis of caste. In the majority Sinhala speaking community, the division was made as a relationship between the Kuleena (meaning those who had power and wealth) and the Kulaheena (meaning those who are powerless and had no dignity). A similar system prevailed under different titles in the Tamil community also. Thus, during this long period of several centuries, there was no idea of people with equal rights and equal opportunities. 

Impact of over ten centuries of internal divisions 

The two principles that the caste system stood for were: the complete prohibition on social mobility where people were kept prisoners of their own caste groups and any attempt to improve their living conditions was punishable with extremely serious punishments; and the associated second principle was the imposing of unequal and disproportionate punishments. This meant that if those who were considered as belonging to lower castes committed even a simple transgression, that person and even his or her family could be subjected to death along with the destruction of whatever belonged to them. Meanwhile, those who belonged to what was considered high caste could not be punished except even for graver crimes committed against underprivileged groups.

These two principles were the pillars on which the Sri Lankan society was organized during this long period. This long held practice created a habit of mind and social behaviour which in turn created a kind of ‘culture’ that remains even up to date. The introduction of some rationalistic administrative methodologies introduced by the British during their rule superficially made some changes to this situation but was unable to touch the core of the repressive culture which has taken root in the country. In the recent decades, even these limited modernizations introduced by the British have been subjected to great erosion. The return to a more repressive society which attempts to displace democracy, the rule of law and human rights is quite manifest in the present times. 

Failure to develop state mechanism 

All these factors have contributed to obstruct Sri Lanka’s development of its own State machinery on the basis of the people’s sovereignty although the Constitution itself has recognized that all power in the nation is derived on that principle.  Instead of the people’s sovereignty, the absolute power of the chief Executive has been established through the same Constitution, i.e. the Constitution introduced in 1978. This Constitution is a major stumbling block for the creation of a State mechanism based on the principles of democracy, the rule of law, and human rights. A major task facing the Sri Lankan State and the people is to replace this Constitution with a constitution that asserts the sovereignty of people through the creation of State mechanisms functioning under the norms and standards of democracy. The security of the people will depend very much on the manner in which this problem is resolved in a positive manner in the immediate future. 

A nation can be built only on the basis of solidarity that exists among the people on the basis of the equality of all the persons living in such a nation. The concept of equality, though recognized formally in the laws, has not been implemented in a manner that could bring about unity in all segments of the society. The poor feel that they are completely alienated within their own society. Even leading politicians themselves recognize that there is a loss of confidence in the Parliament itself due to the chasm between the representatives of the people and the people themselves. However, despite such a recognition, there has been no real attempt to resolve this problem and to restore the confidence in the State. 

The result is divisions everywhere on the basis of many factors such as discrimination against the weaker sections of the society of all communities in terms of every aspect of life. The psychology of division exists because of caste based cultural practices which prevent convergence into a single nation. Discrimination against minorities also has the same effect and is a source of constant misunderstandings and conflicts while discrimination against females is also one mode of division in the country. These and other forms of failures to ensure equality among citizens prevent the emergence of consensus on all major issues confronting the country. 

The alarming failures of the criminal justice system

One of the most alarming factors at the moment is the most visible weakening of the criminal justice system. There is widespread crimes such as murder, rape, theft and robbery, and above all, the rising of corruption to Himalayan proportions. The criminal investigation capacity and the quality of policing have degenerated to such an extent that even the Inspector General of Police has admitted the serious nature of this problem. Similarly, the prosecutor’s office functioning under the Attorney General’s Department has also been the subject of constant criticism. The Judiciary itself suffers from extremely chronic delays, creating problems for the litigants as well as the witnesses to the cases. Those who complain of being unable to get justice due to multiple causes even go on to say that they have lost confidence in the justice system. As a result of all these, there is a popular feeling of insecurity arising out of non-governance and mis-governance. Among the younger generations, there is large scale migration from Sri Lanka due mainly to severe unemployment. 

Under these circumstances it is only natural that there is widespread discontent and protests everywhere. Unfortunately, instead of attempting to openly discuss with the people about their problems, the Government resorts to repression against them. Particularly, the younger generations who have shown a remarkable capacity for peaceful attempts to get attention to these problems, are being treated harshly by using illegal arrests, illegal detention, and harsh attacks on peaceful demonstrators. 

In one recent case, even the Magistrate hearing it observed that the Police have misused the Prevention of Terrorism (Temporary Provisions) Act law without any justifiable grounds. Also, the media has come under severe attacks, in particular those who are engaged in social media networks.

An urgent need to act

The Independence Day brings to the mind of everyone that Sri Lanka requires the taking of urgent actions to begin to address these problems. The only manner through which this could be done is to allow the people to participate in bringing about a nationwide discourse on policies and plans to bring about solutions to economic, political, social, and cultural problems that are hindering the progress of the development of the country. It is only the critical mass that would be able to assist the people and the State to make the Independence real and to strengthen the solidarity of the entire nation on the basis of equality, democratic participation, the rule of law, and human rights. The duty of the State is to create the environment for such a critical mass to operate peacefully and constructively at this most crucial hour of the country’s history.