2 March, 2024

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The Inability To Prosecute

By Basil Fernando

Basil Fernando

The central question that has been discussed over several decades now and which, particularly since the 2019 Easter Sunday massacre, has become perhaps the most central question regarding the nature of the Sri Lankan State is the issue of its will and the capacity to prosecute crimes.  

The issue about the unwillingness to prosecute is now taken for granted. It is known to everyone that there are literally thousands of crimes, most of which are extremely serious crimes, regarding which the State has clearly shown that it has no will to prosecute. The case of the Easter Sunday crimes highlights the issue. However, it is not the only issue that reminds of a State that very openly and blatantly refuses to prosecute large numbers of extremely grave crimes

Why does the State refuse to investigate serious crimes? The reasons for such a failure may be of two kinds. The first of these two categories comes from the top and the other from the bottom. Those that come from the top generally arise from political grounds. Prosecuting crimes may have a very disturbing effect to a political system where the abuse of power may have become very much a part of the political culture. In fact, the working of the political and administrative system may depend on the room that is available for those at the top to commit acts which are in fact crimes. Such a system will not be able to function if these crimes are to be prosecuted. A further reason is that if such crimes are to be prosecuted, overwhelming numbers of persons holding high posts may be threatened with the possibility of going to jail. Hence, people need to be protected from being held responsible for the crimes that they have committed. What is more, if such prosecution is to take place, political alliances that keep a Government afloat may collapse.

The second category that objects to prosecutions may arise from the bottom. That is from those who carried out illegal orders and committed acts which count. The whole institutional culture may have undergone a transformation for the worse and lost the resistance against following illegal orders or commands. If crimes committed by them are to be prosecuted, the who’s who of the institution may face a profound challenge.

The incapacity to prosecute

Much more worrying than the unwillingness to prosecute, is the question as to whether the Sri Lankan State has the capacity to prosecute. This is much more important than the very important first issue, which is about the will to prosecute. Whether the State has the capacity to prosecute has received very little attention and one may even say, no attention at all. While there are many who for many years have seriously worked towards demanding prosecutions into serious crimes, whether those crimes are directly affecting them, or whether their interest on these prosecutions is of a general nature, if there is no real capacity to prosecute, those demands will never be realised.  

Criticising the absence of will to prosecute may be an opportune political move. It is quite a legitimate political demand to prosecute crimes and particularly those crimes which have had an enormous impact on the ‘mind and the soul’ of the society as a whole.

However, the issue is not merely one of legitimacy but whether the goal itself is realisable. If it is not realisable within a given context, then, that issue also must receive central attention if the ultimate demand for prosecuting is to succeed at all.

How then is one to assess whether in real life today, the Sri Lankan State has the capacity to prosecute all serious crimes? What criteria are to be used in the assessment of the prevailing situation, to come to an understanding about the possibility of prosecuting these crimes in terms of the ‘capacity of the State’? However, we suggest the following criteria to be applied in time to assess this problem.

* First of all, one needs to assess whether the Sri Lankan State, as it exists today, accepts the obligation to prosecute all crimes. 

* The next issue will depend on the answers to the first issue, because if the State, as it is in the present structural form, does not absent the obligation to prosecute all crimes, then, it will follow that such a State will not create the necessary structural framework which is essential to the very serious task of prosecuting crimes. If the State does not accept the obligation of prosecuting crimes, then, it cannot be accepted that the State will provide the necessary political and social backing for the institutions which are dealing with the prosecution of crimes to function as they should. A prosecution is like every other task of the State. It requires State institutions. State institutions mean the laws which grant the mandate and lay down all the basic rules that anyone working under those institutions are bound by in dealing with the task of prosecuting crimes. It further requires that human and material resources should be provided to those institutions to carry out those obligations which are imposed on them by the law, and which they are bound to omit. It is not possible to obey in carrying out these obligations unless there are officers who have all the capacities to carry out these obligations and who are not constrained by any higher orders or authorities which could prevent them from carrying out their legitimate duties. This means the required levels of education, training, and the required levels of morality and integrity needed in carrying out these obligations. Added to all these in particular in modern times is the technological requirements that are necessary for the efficient functioning of such institutions and for the officers who work for such Institutions. Making necessary judgements involving professional work require the ways of gathering data and the assessment of the data, which are all functions in modern times, which are highly sophisticated and require the necessary equipment and the know-how to deal with these matters.

Prosecuting basically can be divided into two functions. One is the investigative function and the other is the function of the direct prosecuting work. The investigative function requires the permissive legality which allows independent investigative functions, which belong to a highly specialised category of work, about which there is enormous knowledge in the world today. Investigating is such a highly skilled task and of course, it has the same needs of human and material needs as mentioned above. However, all that becomes possible only when there is a permissiveness which recognises this as a fundamental function of the State about which no exceptions can be allowed.

Investigations among other things also require the maintenance of legally required secrecy so that the matters investigated could be pursued to the very end without being interfered by those who may be adversely affected by such investigations. In other words, criminals who may be subjected to investigations should not be allowed in anyway to be in a position to interfere with these investigations and to act in any manner, disruptive or destroying or disturbing the process of such investigations. Therefore, the investigators should not be subjected to any other control than those required by their own professional conduct. The diverging of the secrets should be a ‘criminal offence’. On the other hand, every attempt to interfere, to disturb such secrecy and prevent the investigations leading to just and fair conclusions, also belong to the same category of criminal activities.

The maintenance of evidence, that is the protection of evidence, and the protection of witnesses is a further function if the prosecuting is to happen in the manner required as a part of a serious function of a State.

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Latest comments

  • 14
    5

    Did you watch that ranil interview with German TV ? Barking like a mad man !

    He had gone there to talk of global warming ! This is a bankrupt country !

    Who gave ranil the mandate to represent this country ?

    How many votes can he get in Sri Lanka ? Not even one percent ! We all know the truth. Ask Ranil to contest any seat, village council or even in a cooperative council. Less than one percent !

    After 50 years of politics that is what the people of this country think of him.

    This man is sick .

    • 4
      13

      ds
      Was the reporter talking of global warming?
      Let us separate the issues.
      There are times when media persons are only interested in ‘pinning someone down’.
      *
      RW should have responded more calmly the way many Third World leaders have humiliated arrogant media persons with some lessons in history and current events.

      • 5
        0

        “RW should have responded more calmly the way many Third World leaders have humiliated arrogant media persons with some lessons in history and current events.”
        From Advise to Gota move to Ranil means ?????

        • 0
          7

          A
          For Gota and Ranil loyalists you have to search elsewhere.
          It will be good to calm down and have a good rest before shooting your mouth.
          That is sound advice to you.
          In Ranil’s case it was only a post-event observation.

      • 7
        0

        Basil, Lankan governments have neither the will nor capacity to prosecute. SC ordered state to pay one Million to ex CID officer Mendis arrested with Shani, and illegally remanded for 11 months. The court noted several contradictions in complaints made against Mendis that evidently contained fabrications and false version. Mendis claimed he was remanded for refusing to falsely allege Shani planting weapons to frame Vass- Gunawardena. Then IGP, chairman and members of public service commission, AG and several were named as respondents who were directly or indirectly involved in this SHAM. Lankans may consider this as justice, but the truth is people who were behind this SHAM are free and holding power.

    • 8
      1

      Dear deepthi silva,
      Remember Gota? He did the same against Stephen Sackur.
      Same feather; Same flock.

      • 5
        7

        Nathan,
        .
        Are you sure the two interviews are more or less the same?

        Although western countries were against us on some issues, Ranil gave good responses to the moderator.

        The question is, if he agrees to an international investigation, the question arises as to why he does not agree to an international investigation into war crimes. Besides, all the judges of the international communities, called for investigation on EASSTER studny tragody have already submitted their thoughts. Also, Ranil’s predecessor President Sirisena created commissions for investigations.

        I am not defending anyone, but he must have some reasons. On that journey, they may have faced various other attacks.

        My million dollar question is – I really don’t know why Ranil promised before he became president that he would work with Scotland yard to get proper justice for the Easter Sunday victims?????
        :
        Gotha’s hic hic talk with Steven Zucker can hardly be compared to DW with Ranil. And Gota had no counter arguments to any of his questions. He displayed his incompetence more loudly. Ranil defended and gave good answers.

        • 6
          0

          leelagemalli,
          I owe you a response. I’d be brief.
          .
          Ranil is the President. Gota was not.
          A higher standard is expected of / from Ranil
          .
          It is wrong to argue that ‘western countries were against us.
          Why should they be against us? Are we their competitors.
          .
          The nature of the questions DW posed were expected.
          Either you answer them or offer reason for not wanting to respond.
          You don’t lose your composure.
          .
          Ranil had a good opportunity to present our country in a better light.
          Sadly, he missed it.

          • 7
            0

            Now, to your million $ question,
            ‘why Ranil promised before he became president to get proper justice for the Easter Sunday victims?????’.
            Ranil promises a lot.
            You remember how he embraced Aragalaya Before and After!
            You know what he thought of 13A Before and After.
            Wait to see what he would say when he is no more the President.

          • 4
            1

            Nathan

            “Ranil had a good opportunity to present our country in a better light.
            Sadly, he missed it.”

            Probably the elections are around the corner, Ranil has to do what he has to do, appeal to the gallery, portray’s himself as a though leader, assures Sinhala/Buddhists he was in charge, and not foreigners.

            Decency, what decency?

            Some Tamils want to nominate a Tamil Presidential candidate.
            It would be interesting.

          • 1
            0

            Nathan,

            Don’t you as a thoughtful person, think that our country where almost everything (society, economy, health, education, culture etc) is doomed must be different from any other comparison on this planet?

            Fortunately, I do.

            I have compared it with even far more alarming situation across the world. I dont think any other leaders could do it, but let RW to try. LKY was machilivian and reset that country. Just because any simpletons trying make it a misleading ride, why should all get ready to dance to their tunes.
            .
            RW is obviously surrounded by bloody criminals of POHOTTUWA to get the support around, and his own party (UNP) is completely destroyed through spreading blatant lies. However RAJAPAKSHES themselves kneel down today before him for escape. THat is one of thousands other high criminal acts of the day.
            And If sinhala buddhist monks would rise up, how dangerous would all be ended up ? – —> no doubt, the country would turn out to be a Tahiti or a Zimbabwe.
            :
            That is why I believe, today’s situation in SRILANKA is highly critical AND it is now hung by the last straw.

            • 1
              0

              LM,
              “the country would turn out to be a Tahiti or a Zimbabwe.”
              Tahiti is a French province and therefore a EU member. Don’t you think that would be good for us?
              :

              • 0
                3

                oc
                Zimbabwe withstood decades of assaults with sanctions. Something that many of us fail to notice.
                Even the ouster of Mugabe achieved nothing for his enemies at home or abroad.
                *
                I do not know why Tahiti was even mentioned. A name that crossed the mind?
                But the way things are going for France in Africa, it may not be long before French Polynesia follows suit.

              • 3
                0

                OC, these days whenever I am forced to read news about my homeland I am quite pessimistic. I really don’t know who to trust. RW’s heated arguments with DW’s moderator made us quite nervous. His talks and arguments with the OXFORD Association made everyone proud. However, he has to struggle mentally not being able to connect with the beasts around him (SLPP) and all the other criticisms are pouring in on him with the delay in the second IMF tranche. He is also human, and miracles are not possible with His ability. The European Union and other nations are paying attention not only to Sri Lanka but to many other countries

            • 1
              0

              leelagemalli,
              I’ll concentrate on Ranil, for now.
              Ranil destroyed UNP, single-handed.
              That is sheer authoritarianism.
              Sri Lanka has lost an opposition!
              Would a leader prop up his opponent.
              That is no Democracy!

              • 1
                0

                Nathan,
                “Ranil destroyed UNP, single-handed.”
                Not really. Karu J. started out by lending a helping hand to MR. Those who went with him are leading lights of the Pohottuwa. Once MR won the war, it was all downhill. Sajith took over what was left. The SJB is the UNP in drag.

    • 9
      2

      deepthi desperate silva

      “Barking like a mad man !”

      It is just to impress you lot.
      He failed when he appealed to urbane, urban, …… sophisticated section of the middle and upper middle classes. He is trying to appeal to you lot, …. hang in there you will see more of the same until the elections.
      Don’t you now like him?
      A lot of the closet racists appears to like him.

      • 6
        0

        Bro NV,
        .
        This is something for you. Kamal Baluratne is caught in the act.
        .
        https://www.youtube.com/watch?v=kWtPEMx8vJE

        I hated the dog again and agian, but now time has come to hang him.

        • 4
          0

          leelagemalli-

          Thanks for the link otherwise I would have missed this incident.
          You know why both were so emboldened, the National Security Committee was chaired by MP Sarath Weerasekara. The Prince of Darkness who very recently targeted a Tamil judge.


          Kamala receives a pension and perks in addition to his salary.
          He should be penalised for abandoning Mangulam garrison when LTTE attacked it.

          Both the army commander and Defence secretary should have been suspended immediately from active duties until further notice.

          • 4
            0

            Native,
            “Both the army commander and Defence secretary should have been suspended immediately from active duties until further notice.”
            It is a choice between useful barking dogs and unpredictable jackals.
            The rananaviruwos are seen to have saved the hamuduruwos. Now they are the king makers. Creeping Pakistan, anyone?

            • 0
              2

              oc
              Creeping Pakistan, anyone?
              I doubt. The army took control at the first opportunity in the 1950s following political instability.
              Since 1957 there were three long spells of military rule covering over 30 years of the 51 year period, 1957 — 2008.
              Even when there was fair semblance of democracy, Pakistan Army was waiting on the sidelines.
              The ouster of Imran Khan was possible with guidance from a patron power , and of course the blessings of the Army.
              *
              Our armed forces had a pathetic try in 1962 that failed. It is insurgency that strengthened its hands.
              Why should the Army spoil a situation in which it is doing pretty well with incompetent governments?

            • 3
              0

              old codger

              “Creeping Pakistan, anyone?”

              Pakistan has no choice. The country was founded on false ideas.
              People were made to believe that the country had to be protected from infidels, communists, Hindia, …with American dollars and by all weather friendship with China. Amy crooks made money out of people who were consigned to a lifetime of servitude and poverty.

              The army owned investment is estimated to be nearly $10 billion. Three of the top brasses within the Army is worth $3 billion. …

              • 2
                0

                Native,
                “People were made to believe that the country had to be protected from infidels, communists, Hindia, …”
                Don’t you see a striking similarity to our people there? Except that the infidels are of a different colour.

        • 4
          0

          Native,
          .
          Most interestingly, whenever war criminal Kamal goes for a jog, two soldiers with two dogs are said to walk before him, and a Defender vehicle is nearby to protect the bugger who took an active part in the end of the war, however, they were appointed to work as soldiers. That is being forgotten by SRILANKEN press even today.

          People have nothing to eat, but RAJAPAKSHISM has made these beasts heroes in a country full of stupid people. These men should be hanged by their balls, in order to comfort the angers of the average.

          However, these men were interpreted by the people similar to the manner, keeping above, as Indian star singers in their feudal society. How could such a culture be established since 2009 more than ever before? People who celebrated it eating milk rice with these criminals are to blame….

          This culture is introduced by RAJAPAKSHE pariah to this country. Why not people yet today throw MONOTOV cocktails to them whereever they are going to show up ?

          • 3
            0

            LM
            “two soldiers with two dogs are said to walk before him,”
            Be fair. Isn’t he entitled to company by his own kind?

        • 1
          1

          I’m sorry, I again slipped up, and the preceding part got submitted inadvertently. I will continue:
          .
          I have to acknowledge here that my own retelling may not be wholly accurate; but that doesn’t really matter. What matters, and proves the lie to any rational person, is the variation that LM introduced in retelling the story a few months later.
          .
          In that retelling, the meat arrived by parcel post, and other details were also conveyed in writing. After all, once something is written down, it is more tangible evidence. Of course, the note was not produced, and there was no court case.
          .
          Now, I put it to readers, that during that period there would have been delays in the mail. Even if there weren’t, and delivery was within 24 hours, wouldn’t blood have oozed out? Wouldn’t the flesh have begun stinking?
          .
          People will believe anything when they are determined to. Was it not after Ranil became President that a man committed suicide in the Kanatta?
          .
          https://latestinbollywood.com/dinesh-schaffter-wiki/
          .
          They buried the body, then exhumed it for further investigation.
          .
          In Ranil’s Lanka it is not enough to murder; one doesn’t allow even “RIP”.

  • 8
    0

    Please listen to the speech the Minister of Justice, Wijedasa Rajapakse made in Parliament yesterday. Better read it in the Hanzard. He took extra time allocated to him to give a narrative of how the “Prosecutions” and “Investigations are not being done by the “Authorized Agencies” in spite of the necessary “Systems” have been changed and required legal provisions being granted.

    The whole House was listening with a needle-drop silence. He hammered “Sixes” and “Boundaries” (6 & 4s) “Right and Left”, referring to “Panama” papers; “Undisclosed” accounts held abroad and “Prosecutions” and “Neglect” of official duties by the “Big Wigs” (in Independent Commissions) He even said: ” I will name the rogues who hold such funds abroad. He said the recovery of that funds would be enough to pay off ALL our “Debts” and still leave with a “Surplus”.

    Unfortunately, he fails to realize that he is performing a ritualistic DANCE of a Peacock that spreads beautiful feathers but BARES the foul-smelling “Shit Hole” (sorry for using that term).

    But the

  • 2
    6

    I am not sure if this gentlemen is living in Australia or what but as a disclaimer I also dont live in Sri Lanka . I think most who write and comment here dont . But I certainly do as an issue with the Criminal justice system and what I see is that it is quite powerless against organized crime. I was watching the news yesterday day and it mentioned that there were 40 murders just yesterday. I dont think there were that mean deaths even during the war.

    Also listening to coverage it is quite clear that the government and the courts and the cops are simply unable to stop this crime wave. Traditional law and order is just unable to handle organized crime. During the former presidents time these goos were summarily sent to see thier maker

    • 1
      6

      Cont …

      Sorry about the spelling … but if something is not done I think the country will be in a far worse state like a narco state like Columbia before long.

      But then I suppose this article is most likely about not prosecuting Rajapaksas or some other politician of their choice. but I hate to say that is not the biggest problem

  • 6
    0

    “a State that very openly and blatantly refuses to prosecute large numbers of extremely grave crimes”
    This IS THE country that gives great respect to Lord Buddha but never practices in their lives , even most clergy. Had they followed the lord’s teaching they would have suppressed & subjugated the hard working & law abiding minorities. RW has NOT got the talent/skill to be a real statesman to fix the problem. He is only SHREWD ENOUGH to manipulate the system to his advantage.

  • 2
    0

    Much more worrying than the unwillingness to investigate after years and previously said needs hybrid investigation is what we do for ourselves dies with us. What we do for others remains and is everlasting, it has been said that time heals all wounds. Do not agree. The wounds remain. In time, the mind, protecting its sanity, covers them with scar tissue, and the pain lessens, but it is never gone

  • 1
    0

    The esteemed author Basil Fernando has yet again so effectively presented a mind blowingly disturbing pattern of impunity in our country.

    Time and again, demand for accountability and justice by the electorate has been vastly absent and often to serve the SB nationalist agenda. The vast of the electorate itself has failed to uphold democratic values by it’s choices over the history of the country.

    When the next general election comes about, with much of the country hungry and begging or not, history is likely to repeat itself.

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