By Basil Fernando –
One year has passed since the appointment of the new government. Undoubtedly, some changes have taken place and further changes are being discussed. However, there is one very important – perhaps the most important – issue, which has been entirely ignored. This fundamental omission concerns the stability of Sri Lanka as a nation; it is something that underpins the achievement of peace and the economic progress of the nation. The elephant in the room that has been ignored is the ability to enforce law in Sri Lanka.
Currently, all these institutions are in extremely dysfunctional states. The citizens of this nation suffer in a state of anarchy. The word anarchy here refers to the failure of the State to enforce the law through its legitimate agencies, such as the police, the corruption control agency, the Attorney General’s Department that is involved in the prosecution of offenses, and the Judiciary that is meant to adjudicate and ensure justice.
This anarchy is, of course, not a problem that has been created by the present government. It is a product of many factors, which includes the failure of the infant State, which came into being on 4 February 1948, to grown up into an adult State. The growth of an infant state into an adult one means that the state is able to develop just laws and is able to enforce those laws through its legitimate organs.
The Sri Lankan State has, however, not yet learnt the basic skills of running a state apparatus. This has been the cause of many problems. These problems include extreme forms of violence, which developed, particularly since 1971 and for many decades after, and serious conflicts relating to the inability to provide equal protection of the law to everyone, including the minorities. Despite the present government not having a hand in these factors, without solving this problem, it cannot help Sri Lanka attain any of the dreams it has spoken about, or help realize some of the dreams people now dream about.
Practically speaking, a person who sets out to pursue his or her dream should have a vehicle to travel in. For a government, this vehicle is the apparatus of the state, i.e. the legitimate organs of the government. If these legitimate organs are broken in the way the engine of a vehicle is broken or the wheels of a vehicle are broken it is not possible to makethe journey without first doing some serious fixing.
This is exactly what has happened to Sri Lanka since independence in 1948. And, it has been aggravated in the last 40 years of conflicts and violence and enormous loss of life and liberty of thousands of people.
The challenge then and now is to make the vehicle capable of moving, capable of carrying the State and the people towards their goals. And, this requires taking all the possible steps to get the essential components of vehicle, i.e. the basic State apparatus, repaired as soon as possible. This, in turn, requires human resources and also financial and other resources.
Therefore, the duty of the government, first and foremost, is to provide these resources, so that the State will once again have a functioning apparatus that the people and the government can work with. To anthropomorphise, it will have the hands, the legs, and the physical organs to work and function.
At the moment, the government has not yet given a thought to this; it has not declared its policies on this fundamental issue, of repairing the essential State institutions to both ensure justice and effectively enforce the law; and there doesn’t seem to be even an attempt being made to consider the same.
That said, an opportunity has arisen where a national discourse is possible on these issues. This opportunity has come as a result of the government announcing that it wants to change the Constitution and that a committee has been appointed to consult people about the reforms they wish the government must embark upon.
Thus, there is a possibility of vigorous discourse, in terms of what the people think are the priorities that should be achieved within Sri Lanka. And, it is to be hoped that all will participate, particularly those who are aware of what constitutions are and what they are supposed to achieve, and that in this participation an opportunity will arise to educate the population for a higher understanding of what the State is all about and how it can and should serve the needs of the people,especially the need for the protection of all persons.
To aid and further this discussion in light of the opportunity that presents,what follows is a brief description of the requirements in a functioning Sri Lankan State apparatus.
Currently, there is utter dysfunctionality in the Sri Lankan Police Service, the Prosecutions Department, and the Judiciary, with the term dysfunctional here meaning that these institutions are unable to performtheir most basic duties.
So, what are these basic duties?
The primaryduty for the police begins with the facilitation of quick intake of complaints by victims of crimes and human rights abuse, in a courteous and efficient manner, so that the people have trust and comeforward to make their complaints to the organs of the state.
Following the taking of statements from complainants, the next step is themaintenanceof all the books relating to such complaints, with the highest possible protection, and not to tamper with these documents or allow any kind of distortion.
Investigating into the crimes based on the complaints, according to due process provided for in the Criminal Procedure Code, would be the next basic duty of a functional system. This would require the competence of officers to investigate.
In the modern setting, investigation capacities have been identified, and there are easily accessible opportunities for training to develop capacity for rational and efficient investigating techniques into crimes. Skills, such as the capacity to interview in an intelligent manner, the capacity to gather evidence that could be brought to the attention of the accused so that the accused may be required to explain such evidence, and the ability to effectively use modern technology for investigation, are skills that can be acquired. The skills of using forensic sciences and technology, such as recording and photographic instruments, and many other types of technologies, are constantly being developed and improved around the world, and are available at affordable prices. Competent investigators in the present age must be equipped with such technology and skills.
Next comes the duty of the investigators to provide a faithful record of what they have obtained by way of evidence to the Attorney General’s Department, without making any distortions. And, then it is for the Attorney General to pursue the record, identify if a crime has been committed, and then immediately prepare indictments if such a crime has, in fact, been discovered. This is something that needs to be done carefully, but at the same time efficiently, without the wastage of time.
And, finally we have the turn of the Courts, which have many duties. The first basic duty of the Courts in a functional system is to receive all parties that come to the Court – the police, the prosecutors, as well as the people – courteously and with due respect. Thereafter, abasic duty of the Courts is to conduct the proceedings in the manner prescribed by the law and not to allow any type of delays in this matter.
And, it is this last duty that is the greatest challenge to the maintaining of an efficient State mechanism in Sri Lanka. The delays in adjudication that are taking place in our legal system are a source of many forms of corruption and a source of many forms of abuse of power.
When a result of crime – whether a crime was committed or not – can be known only some ten or fourteen years later, at a time when the society has lost interest in this crimeand its conviction, then the system is a dysfunctional one.
To have a social impact, with a deterrent effect, there needs to be reasonably quick disposal of cases so that the people remember the crime, and they remember the punishment. And, thereby, the society can learn a lesson: to avoid certain kinds of conduct in the future.
The failure of Courts by way of delays is the greatest failure, and it is something for which all Sri Lankan governments are responsible.
It is not only the Judiciary that is responsible for these failures; it is the government that must provide resources and all the facilities and also proper persons who are selected only on the basis of competence and integrity to run judicial institutions. On all these matters there have been tremendous backward steps since the promulgation of the 1972 and 1978 constitutions.
If the legal process takes place and takes place quickly, it does not merely solve individual crimes or individual abuse of violations of rights, it creates a state apparatus that the people will see as functioning efficiently and thereby it will bring about order.
It is the loss of order that is considered as anarchy. What prevails in Sri Lanka, as a result of dysfunctional basic institutions, is disorder, and disorder means anarchy.
The responsibility for the prevailing anarchy must be taken by whoever is running the government at the particular time. So, despite not being behind the factors that have led Sri Lanka to this state of anarchy, it is, therefore, the new government that bears the responsibility for addressing the disorder that has spread in Sri Lanka, and it is this government that must quickly redress the problem by bringing in the necessary changes in terms of the repair work and the resources for this repair work.
It is these budgeted resources in Sri Lanka that are mostly lacking, and not as much the law. And, it is the duty of the government to provide these resources. If not, the government will fail in its primary duty, and keep the State of Sri Lanka as an infant State and thereby one incapable of serving the needs of Sri Lanka.