By Basil Fernando –

Basil Fernando

Social reformers in some countries have spoken about crime free zones. This meant putting special effort to experiment with the possibility of making a particular area within a country crime free. The purpose of doing that is to create a model which would gradually spread into the whole country so that the crime would be reduced or eliminated gradually.

This same idea is embedded in the making of criminal justice systems. The idea of control of a crime through proper criminal investigations through competent and confident officers, through impartial prosecution systems and a judiciary that will uphold the basic principles of fair trial are all meant to reduce crime drastically if not for altogether eliminating crimes.

As against the crime-free zones, what has been happening within Sri Lanka is the deterioration into a free crime zone encompassing the whole of the country. This has happened in many ways and the basic system that was established during the colonial time to control crime has been undermined to an exceptional level.

However, what is proposed through the political victimization commission, by recommending withdrawal of criminal indictments filed in courts, is to make Sri Lanka even more of a free crime zone. If any commission or even the highest authority in the country has the power to order that criminal indictments file in a court should be withdrawn, that amounts to declaring that the crimes against which these indictments have been filed are not crimes at all. If that could be done once, then it could be done again. With that, the entirety of the system substantially changes. The facade of the system can remain but once the substance is removed, the result will be one that only the criminals could celebrate.

Therefore, the situation has reached a final critical moment.

The preparation towards that moment has been made over a long period of time. The series of measures by which this situation was brought about can be briefly mentioned as follows: Five judges of the Supreme Court and an Attorney General, who also later became a Supreme Court judge, agreed in 1972 to act outside the normal law of the country in deciding on the innocence or the guilt of persons without granting fair trial to the accused as is required by the system of law prevailing in the country. Till then, the judiciary mostly adjusted cases involving ordinary crimes such as theft, robbery, murder, rape and other individual crimes. With the incidents that took place in 1971, where the J.V.P attacked some police stations, a new situation came about. And instead of trying to find a solution to the new problem within the framework of the existing legal framework that guarantees the right to a fair trial, the very idea of the fair trial was abandoned. That paved the way to the collapse of the criminal justice system because once the foundation of the infrastructure is damaged, then gradually the whole structure that stands on it is bound to collapse.

Even before that, by gazette notifications under the emergency laws, disposal of dead bodies was allowed without following the proper legal process of having postmortems and reports. This was a deliberate move to prepare the ground for political assassinations. Similar provisions have been repeated later from time to time. On each of those occasions, large-scale killings have taken place in the hands of the security personnel and these killings have taken place mostly after persons were arrested. The most basic and the sacred rule relating to the right to life and the right to due process under the law is the protection given to persons who are under arrest as they are in the custody of the state. This basic provision has been repeatedly violated. Since the first killing of prisoners in 1983, there have been several instances in which prisoners have been killed inside the prisons. Also, prisoners being killed at the police station after even being arrested for normal crimes, being subjected to extrajudicial killings is an occurrence that happened many times during each year. Again, none of these crimes have led to proper investigations or prosecutions.

Later, with the development of organized crime, again situations developed where either due to political influences or by way of other corruption and bribery, crimes go unnoticed or they get hushed up.

Then various methodologies were developed, particularly by the use of national security laws and anti-terrorism laws, to keep people in prolonged detention without trial. Often there was the complaint that many of these people who were kept in that way were put into that position due to political reasons or due to the influence of powerful persons.

All these matters affected the machinery of criminal justice. The quality of criminal investigations went down rapidly and the reason very often given for this is political interference. The fear that doing a proper investigation could lead to serious consequences for the investigators became a major factor undermining the entire process of investigations. It became common that even crimes of very serious nature affecting the lives of many people did not lead to proper investigations ending in prosecutions. The Easter Sunday massacre of 2019 and the aftermath itself is an illustration of the extent to which the system has collapsed.

Added to this, there are the entrenched problems of delays in justice which most of the time were in favor of the accused. These delays, according to a Parliamentary Select Committee, could go up to 17 years or more. How could any system of criminal justice survive with those kinds of delays?

With all that, if some elementary system survived, that too has now been challenged by use of presidential power for pardoning crimes without following any guidelines acceptable within a rule of law framework. It is against the backdrop of all these things that now the recommendations of the political victimization commission has arrived.

The virtual demise of a criminal justice system is a disaster of the greatest proportions that could ever happen to any society. Life, liberty, the right to property and right for the use of public space by way of free speech, right by free association and assembly, all can be protected only to the extent that the country’s criminal justice system works. However, even more serious is the fact that the country’s economic system is almost entirely dependent of the existence of a functional and credible criminal justice system which is capable of maintaining the respect for legal rules and respect for the obligations under contract intact. Without an effective criminal justice system, daylight robbery is possible at all levels.

What we are witnessing now is a catastrophe of great magnitude. There does not seem to be sufficient public awareness of the danger with which the society is faced. Or it may well be that there is such a level of despair within society about the inability to do anything about the kind of problem we are faced with. Whatever be the reason, this lack of awareness will not lessen the catastrophe but it will add to it.