By Basil Fernando –

Basil Fernando

It is clear by now that the attempted impeachment is being done in a completely lawless manner. The present approach adopted for the inquiry is no different to a committee consisting of a man’s enemies being assigned to conduct a murder trial against him. Regardless of the man’s guilt or innocence, the enemies will ensure that he will be found guilty and be hung.

There are many clips on YouTube about the mobs that gathered before the Supreme Court and the Parliamentary Complex shouting slogans against the Chief Justice and demanding her resignation. In no other country can you find examples of mobs gathering to shout slogans demanding that judges resign. Some of the people in the mobs who were interviewed directly named certain Members of Parliament from the ruling party as those who organised the mobs. It was thus clear that the mobs were organised by the government to shout slogans against the CJ. Thus, the responsible party for mobilising the mobs to bring down the prestige of the courts is the government itself. This is a government that is openly encouraging lawlessness. A government that mobilises mobs in this manner demonstrates no political will to keep law and order or to ensure respect for the institutions of the state. The result will be the government causing chaos in the country.

However, the history of the government resorting to lawlessness is not new in Sri Lanka nor is it confined to this government only. The most glaring example of absolute lawlessness is the manner in which various governments since 1971 have resorted to the causing of large scale disappearances.

In 1971, according to the statistics which came up at the Criminal Justice Commission (CJC) the JVP was responsible for 41 civilian deaths, the killings of 63 and the wounding of 305 members of the armed forces. In retaliation, the United National Party government killed 5,000 to 10,000 young people and placed another 15,000 to 25,000 in arbitrary detention. As it is well known, a very small number of these would have been hardcore JVPers but there was little concrete evidence of engagement in any serious attacks against the majority. The procedure that was followed was arrest, torture during interrogation, killings and, for the most part, secret disposal of the bodies.

It is a universally recognised principle in law that, once a person is arrested, the state is under obligation to protect that person and produce them in court. It was this principle that, on government orders, the armed forces and the police openly flouted. The government neither expressed any regret for giving such orders nor did it ever conduct inquiries into such killings. Thus, this heinous criminal activity began to be accepted as a legitimate activity by the armed forces, police and the paramilitary.

Later, the causing of enforced disappearances was practiced on a much larger scale in the south, north and the east. In relation to the JVP uprisings from 1987 to 1991, the number of persons who were made to disappear was around 30,000, according to the statistics given by the commissions of inquiry into involuntary disappearances. Many are of the view that the numbers are much larger.

As for those who have been made to disappear from the north and the east from the early 80s to May 2009, no records have been made but obviously they would outnumber the enforced disappearances from the south. Once again, no government has ever expressed any regret about such killings and no attempt has been made to conduct any inquiries or hold anyone accountable. In fact, to demand inquiries into these enforced disappearances is considered treachery and an act which favours the LTTE. The simple issue of the protection that should have been afforded to an arrested person is no longer taken for granted in Sri Lanka. The principle that is really in practice is that after arrest, if the particular agencies so wish, a person could be extrajudicially killed or made to disappear altogether.

A complete transformation has taken place in the basic norms regarding crimes. What was universally considered a crime may not be considered a crime in Sri Lanka if, for some political or practical reason, the government wishes to treat them as not being such. Thus, the idea of crime has been relativised and the choice as to whether to treat even a heinous crime as a crime or not is now in the hands of the government in power.

It can be said that no other government in the region regards crimes in as much of a casual manner as is done in Sri Lanka. There are countries in which, due to certain historical reasons, there has been the collapse of their legal system and they have ignored basic norms of legality and illegality. Two such countries that are known to face such situations are Cambodia and Burma. However, even these countries have not gone to the extent of ignoring the criminality of an action to the extent that it is being done in Sri Lanka now. Even in situations like those of Cambodia and Burma, there is still protection for a person who has been arrested and taken into custody.

In a country where lawlessness has gone that deep, the illegal impeachment of a superior court judge, ignoring universally accepted norms regarding the removal of such judges, is merely a logical extension of the overwhelming disregard of the law.

The law now is that whatever the government does is correct and that the correctness will be demonstrated by the use of the mob under its control. Any kind of behaviour that a law abiding nation might consider illegal or even vulgar may go as decent and right in Sri Lanka under the present circumstances.

This is a bewildering situation and the implications are beyond comprehension. Both the rights of the individual, as well as property rights, will fall foul of this situation. Anyone who has the will to defy the law and has any connection with the government would be able to do whatever they like. Each individual citizen will learn about it when his or her rights are directly affected by this situation. There are already tens of thousands of people who have had that experience.

If the people thought that they might have some recourse to the courts and find some solace as in the past, that too will prove an illusion more and more. In a country where the Chief Justice herself is helpless before lawlessness how could any other citizen expect the protection of the law?