By Basil Fernando –
Deterioration of the legal intellect (12): Towards an explanation about violence, based on failures of policing, prosecution, and judicial institutions
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.
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.
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.
Raja / June 18, 2015
The society has become decadent and amoral if not immoral, not just the legal system.
Take for example, the education in schools: In the Fifties and Sixties, hardly any student went to tuition classes; teachers taught conscientiously and that is all that was needed for the pupils to learn. Today, there are thousands of private tuition classes but the teachers in government assisted schools don’t teach sincerely – they are indifferent and conduct private tuition classes themselves, encouraging pupils to attend them.
Parents, teachers, students and the society itself accepts it as normal.
In such a state of the society what else can you expect from the legal system? The whole society is corrupt. Kusal Perera keeps highlighting this in his articles to the CT.
Ahfzll / June 18, 2015
Thank you Mr Fernando for highlighting the synergies of corruption!
The problem, as it stands; is very complex – however a fairly simple solution seems available.
Which is – Anyone/Everyone who has taken responsibility be held responsible for their acts that have been detrimental to the RULE OF LAW.
They be prosecuted for their acts of:
Omission and/or commission;
Ignorance or by manipulation;
Out of fear or for favour;
Old school ties or secret fraternities;
Ethinicity, caste or forms of Tribalism
That have been in the against the best interest of SRI LANKA and all her people.
To achieve the above in 1956, the Late Mr. Lee Kwan Yew – promised each and every party ( Communist included) to support him into power. After having been brought into power he promptly exiled the communist and held each and everyone who was given responsibility subject to the RULE OF LAW. If any one was found guilty of abusing his/her power of responsibility that they had undertaken they were given the the maximum penalty without recourse. Within a decade, Singapore was well on its journey to where it is now. Having said all that, in 1956, the great Mr Lee Kwan Yew was also guilty of having done things against the RULE OF LAW.
Another important thing he did was he banned contemporary religion from being discussed in Public. The RULE of LAW in that aspect was that religion- is an individual’s right and has no place in POLITICS. Woe betide anyone who used religion for shirking his responsibility.
Almost everybody in Politics, today, has been involved in breaking the RULE OF LAW – President Sirisena has the ability to do what Lee Kuan Yue did in 1956. What he needs is a group of REAL Sri Lankans who are interested in the success of Sri Lanka as an Independent, Multi-cultural, Unified Country.
To use this simple rule, we should start by weeding out the present members of the current Government from Parliament – who are guilty of taking advantage of their position and responsibility – in order that the corruption of the previous regime is brought out and those guilty be punished accordingly.
The people surrounding the Rogue President want him back so that their misdemeanors will be swept under the carpet.
It would be of immense help – if CT allows ONLY comments about the message and not allow anything about the messenger!
Thank you again – Mr Basil Fernando
Ponkoh Sivakumaran / June 18, 2015
And the great joke is that they want to hold internal investigations into war crimes. People have been killed without any action ever taken. 70 thousand Sinhalese young were killed by the army. There are no records of how they died. No one has even asked questions. The JVP of today stays mute. People asking for water were killed. No one was prosecuted. Muslims were killed in Aluthgama. Muslim politicians for ever seeking crumbs, remain mute. The Tamils have the courage to ask for war crimes trials. They must be held under international auspices. It would have a cathartic effect on the country and ensure that there is deterrence to killings without accountability. Account must be made of all those who disappeared when taken away in white vans. Those who are on the list of the disappeared must be accounted for by the government. There can be no rule of law unless the possibility of such events do not exist anymore. The problem is that the possibility is not removed. The present government simply does not have the guts to do it. Who have they got to do an internal inquiry into war crimes when most of the fellows who pass off as judges are tainted beings?
vas / June 19, 2015
The absence of the rule of law is the creation of the political leadership. The instability and the fear created is for the subjugation of the people by the political leadership. Until the political leadership is made accountable this mayhem and subjugation of the people will continue. People will have to rise up and demand accountability if they are to be liberated. Even the 13th amendment is used by leadership to control the masses. The rapists and the drug runners that are in control of the provincial council are well known for the rapes and gun running which is a frequent phenomena. The leadership ignores it all. The present day leadership is no better. Remember the thug who raped a doctors daughter pardoned by none other than J R J and given a post of justice of peace. JRJ got away with out a wimper of protest. The fear created is the modus operandi of control of this despicable class of politicians.
justice / June 19, 2015
The Rule of Law does not apply to citizens arbitrarily arrested by the army and police under the PTA.
The Secretary of Defence functions as judge, jury and executioner, by ‘sentencing’ those arrested to three months imprisonment without any trial, and this is extended every three months without any reason
conveyed to those arrested, or their families, who also are not informed where these persons are held, incommunicado.
We are supposed to be a functioning democracy.
“Political prisoners” suffer in similar manner.