By Basil Fernando –

Basil Fernando

A few decades ago, Sri Lanka’s criminal justice system was organised on the basis of the Penal Code, the Criminal Procedure Code and the departmental orders of the police . The Penal Code defines crime and lays down penalties for each particular crime. New crimes were identified or defined either through amendment to the Penal Code or through separate statues. The Criminal Procedure Code describes basic protocol that should mechanisms in the justice and law enforcement institutions should comply with and provide proper processes along which those in authority must operate. This includes how complaints are to be taken down, how to and who should conduct the investigations into crime, how the findings of the investigations are to be submitted to the Attorney-General, how arrests should be made, how indictments are to be made by the Attorney-General, how the indictments are to be filed in courts, how the trial process is to be carried out and how bail and appeals are to be made. The Criminal Procedure Code also lays down the manner in which people are to be summoned to courts and how to deal with persons who evade the summons, as well as many other matters incidental to the investigation, prosecution, trial, appeal, sentencing and punishment of an accused in accordance with accepted legal principles within the country. This system that had been gradually developed over centuries was supported, implemented and enforced by the police departmental orders, and guaranteed to large extent fairness through equality before the law and equality of protection by the law.

The departmental orders of the police lay down the manner in which police who are to play the key role in the investigations into crime are to carry out their obligations. These orders circumscribe the legal mandate of police officers and prescribe acceptable ways of recording complaints, making arrests, detaining a person, interrogating suspects and witnesses, maintaining records and proper documentation of all proceedings, the systematic archival of evidence and case files to the Attorney-General and pursuing crimes their order permits them to prosecute. The obligations of police officers are described in minute detail in these departmental orders. Officers-in-charge of police stations were tasked with the critical role of personally demonstrating, supervising and enforcing the proper conduct of police officers and of investigations, as well as with the maintenance of discipline within the police station. Assistant Superintendents of Police were in turn to monitor the conduct of all police stations under their charge. In this manner, a strict hierarchy and chain of command was strengthened through dense networks which demanded accountability and a certain amount of transparency. This system provided feedback mechanisms with which rogue actors and misconduct could be quickly checked by superiors and peers. This possibility in turn encouraged self-regulation by those in authority and inspired trust and confidence among the general populace.

The Penal Code, Criminal Procedure Code and the  Departmental Orders  together enshrine scientific methodologies for investigation into crime. Centuries of vigorous debates in the European context gave rise to the rules set out in these various legal documents. The norms of equality of all before the law, justice and protection for all by the law led to the gradual abandonment of the systems that prevailed in Europe before the 17^th Century. This period came to be known as the period of Enlightenment. The primary concern during this period was the development of a system of governance based on models of rationality, empiricism and science, and on the ideal of utilitarianism. This system attempted to balance the interests of many, often competing, parties, and to design rules to uphold, protect and enforce principles of justice. The criminal justice system was based on the acceptance of presumption of innocence before being proven guilty, and the placement of the burden of proof on state agencies, particularly investigators and prosecutors. These agencies were charged with bringing before the court adequate information and evidence which would conclusively link the suspect with the crime committed. Guilt was to be imputed through concrete evidence alone, the logical interpretation of which should prove beyond shadow of a doubt that the accused was responsible before any verdict or sentence is dealt.

A thing of the past

The system described above is today much a thing of the past. Since 1978, the adoption of the new Constitution of Sri Lanka has replaced this old conception of criminal justice. Increasingly, state and public security laws have replaced the old system of criminal justice and its belief in due process and the principles of equity, equality and justice. These national security laws and acts suspend scientific rules and processes that would normally apply in the event a crime is committed. This is equivalent to a suspension of justice, equality and equity in law enforcement and the judicial system. For over 40 years since the counterinsurgency of 1971, the rules and recommendations composing the Penal Code have been systematically neglected or violated, rendering irrelevant considerations underlying the rule of law – presumption of innocence and burden of (adequate and scientifically obtained/interpreted) proof on the prosecuting agencies. Newly defined transgressions are often accorded disproportionately severe punishments and new legal statutes permit the suspension of due process for arrests and detentions. This undermines every principle upon which the old system of criminal justice was built.

In the earlier system of criminal justice, two departmental heads played critical and roles . The Inspector General of Police directed and supervised the policing and law enforcement institutions, while the Attorney-General ran the Attorney-General’s Office, which excecised the prosecutors function. Both department heads were expected to ensure that the entire system of investigations and the prosecutions are conducted within that normative framework delineated by the rules comprising the Penal Code and the Criminal Procedure Code. These department heads enjoyed the privileges, power and respect attendant high office.

Enter the Ministry of Defence

Yet national security laws have hollowed out the portfolios of the Inspector General of Police and the Attorney-General by placing greater power in the hands of the Ministry of Defence. The Secretary of Defence has acquired unprecedented powers through national security laws such as the 1979 Prevention of Terrorism Act (PTA) and various Emergency Regulations (ERs) since the 1971 Janatha Vimukthi Perumuna (JVP) insurgency. ERs can suspend, amend or override any legislation . Such powers threaten the long cherished principles of criminal justice. Some of the ERs cleared the way for causing forced disappearances in large scale.

There has also been a proliferation of power amongst other agencies closely connected with the Sri Lankan Ministry of Defence. The intelligence service, whose earlier mandate had been strictly and clearly limited, has an expanded purview that includes most sectors of society, where they play supervisory roles. There are few, if any, restrictions to their power akin to the boundaries set to the ambit of the police according to their departmental orders. Intelligence service operations follow unwritten guidelines very vaguely and generally understood within the Ministry of Defence and amongst affiliates. These groups remain unaccountable to the courts and the public. They  often abuse even the chain of command and communication established by the government. Yet their actions are often overlooked, condoned or justified by the ruling parties as essential to “national security.”

Paramilitary groups such as the Special Task Force, and others of an even more clandestine nature, are also intentionally kept outside public scrutiny and the control of an elected parliament. The nature of these agencies and their work is often secret. In the earlier criminal justice system, it was compulsory for police officers to identify themselves in public through donning a uniform, carrying badges and presenting various identification numbers upon request. They worked openly in society and had to clearly explain their activities in accordance with well-established rules and procedures. Law enforcement agents today have no such organisational obligation; the public are often unaware of the presence of police, who may dress in plainclothes on duty, do not present badges or identification numbers upon request or conduct arrests by due process (informing the suspect of the charges being brought against him or carrying a memo authorising the arrest, for instance).

Agencies charged of national security have adopted methodologies which would have been considered completely unacceptable within the earlier criminal justice system. Under the excuse of protecting “national security”, the officers may themselves engage in criminal, barbaric and morally reprehensible activities such as abducting, torturing, falsely charging or extrajudicial killing of persons. Victims are often dehumanised through rhetoric that terms them animals, traitors or enemies of the state. Instead of open arrest, persons may be suddenly accosted, brought into detention in “unusual” places or forcibly “disappeared” or killed in extrajudicial operations. These new practices not only substitute old processes but the fundamental principles upon which the old processes were constructed. Such executive impunity has never before been allowed to be exercised, even by police in the earlier criminal justice system. And these new practices  have been put to use  large a scale. These are not hiccups in the earlier criminal justice system – they are manifestations of a radical departure from the criminal justice approach to national security approach.

A Radical Departure from criminal justice

The corpus of complaints about the complete disregard for all provisions of law dealing with crime is so vast it is no exaggeration to say that today the Penal Code, the Criminal Procedure Code and the Departmental Orders of the police are regarded as matters that are no longer vital to the functioning of criminal justice in Sri Lanka. The process by which this entire system has been displaced is described in popular parlance. Much has also been written and spoken about the politicisation and militarisation of judicial processes. What in essence this means is the displacement and replacement of the command responsibility that comes down from the Inspector General of Police down to the lowest ranking police officer with a new structure wherein there is direct contact between politicians and police officers of all ranks without reference to their superiors. Hierarchy, accountability, checks and balances have lost much of their meaning and the superior officers themselves seem to have accepted this erosion of their authority and the corrosion of due process as fait accompli. The policing system was never intended to be run by power holders outside the system. When such intrusions and impositions occur, the integrity, independence, impartiality and credibility of the entire process is compromised.

This is not an exhaustive exposition of the security apparatus of Sri Lanka. There are many texts that provide analyses of the contemporary political and judicial administration of Sri Lanka. Instead, this article merely stresses the transformation of a society where even the phantom of criminal justice no longer haunts the structures now filled by actors who aspire only to the semblance of order and justice while themselves holding the reins of power and acting with impunity. The public has a right to know the extent to which Sri Lanka has changed and the impact this has had and continues to have on their lives. The successful erasure of the importance of justice in public awareness and the secrecy with which political responsibilities of a regime are held in Sri Lanka signify the pressing need for understanding and local debate to be generated.