By Basil Fernando –

Basil Fernando

Deterioration of the legal intellect (12): Towards an explanation about violence, based on failures of policing, prosecution, and judicial institutions

Problem

There has been much discussion on violence as a result of cultural, ethnic, religious, social, and economic factors, but hardly any on violence caused by failures of the justice sector. Why there is such an absence is hard to grasp. Everyone knows that competent and efficient functioning of policing, prosecution, and judicial institutions curbs violence. The corollary to this, i.e. the absence or failures of such institutions increases violence, should also be obvious. However, in public discussions, there is hardly any reference to these institutions.

Only one thing can explain this: the society, in general, is left with no hope that these institutions will perform any better. Blaming politicians for everything is the favourite pastime of almost everyone. Though the criticism is justified, something more is needed if solutions are to be found to the problems that everyone is worried about.

In this series we have examined many events as examples that constitute the way of life in contemporary Sri Lanka. These examples sum up the basic problems of the nation’s institutions of justice. Or, to put it in another way, the manner in which these institutions function create the injustices that people routinely suffer from.

A summary of these problems will bring us to the core issue raised by the articles: how deformities of policing, prosecution, and judicial systems contribute to widespread violence in Sri Lanka. The general problem that affects all three institutions is that there is no unifying principle that binding them. That unifying principle should have been the agreement on the rule of law, as a thread that binds them.

Though it is claimed in Sri Lanka that the rule of law is the overarching organizational principle in the country’s legal system, there is, in fact, no truth to this claim. The result is that the three institutions run in ways they think fit. There is no uniformity, not even of precedence; the way something is done today need not be the way it will be done tomorrow. The operators can manipulate all operations in whatever manner they choose. Details, discussed below, regarding each institution, are important; however, no solution is possible till the overarching problem— a lack of a unifying principle— is resolved.

Details

As for policing, the prominent problems may be summed up thusly. Policing in Sri Lanka is still primitive, as it has failed to change and assimilate principles and organizational structures of modern policing, which now prevails in all successful democracies. Another significant problem is the serious deficiencies in competence in the use of sophisticated methods of information gathering. This deficiency is so glaring that it is justifiable to characterise the system, as a MODA system (a foolish system); Widespread use of torture and ill-treatment and resorting to custodial killings and causing of disappearances is another prominent problem. And, as if these are not manifestations enough of a failed system, policing in Sri Lanka is also marred by widespread corruption, the loss of management of the system under the principle of command responsibility, and, consequently, the loss of disciplinary control. Subordination to political interference completes the picture. (Under each of these categories long litany of many other defects can be listed.)

As for the prosecution functioning under the Attorney General’s Department, some of the defects publicly noted are: loss of independence, abuse of Attorney General’s power by interventions to stop investigations into serious crimes, delay in filing indictments, lack of resistance to the adjudication process, compromise regarding punishments violative of basic principles of criminology (often purely for reasons of convenience), subservience to clearly illegal orders and to demands of those in power, and all manner of internal problems that have seriously demoralized the Department.

As for the judicial system, it has, at all levels, glaring defects of its own. These are defects everyone knows about: Scandalous slowness to deliver its services has overshadowed all performances and successfully alienated most of the population. Political alliances made, during the last 40 years in particular, have undermined the idea of separation of power and the judiciary as a separate branch of government. All higher legal remedies, such a Habeas Corpus and writs, have been undermined due to the overall political changes that have taken place in the country. The judiciary’s place in the basic structure of governance has become quite ambiguous in terms of the constitutional changes under 1972 and 1978 constitutions. In the lower courts, particularly the magistrate courts, there is little room to unravel all kinds of unscrupulous manipulations done by the police, such as fabrication of charges, tampering of evidence, submission of false reports even on serious issues like arrests, detentions, torture, custodial deaths, and objections to bail.

Implications

It is in the light of all these details that the role played by the justice institutions in the generation and spread of violence must be judged. A simple way to assess this is to ask: how would a criminal, aware of these defects, think. Criminals do assess their chances of avoiding legal consequences of illegal actions. When they know that the net woven to catch them is full of big holes, the conclusions they would arrive at are obvious.