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.