SRI LANKA: A short report on the features of the increasing authoritarianism

SRI LANKA: A short report on the features of the increasing authoritarianism

In her media statement from Colombo on 31 August 2013, Dr. Navi
Pillay, the United Nations High Commissioner for Human Rights, said,

"I am deeply concerned that Sri Lanka, despite the opportunity
provided by the end of the war to construct a new vibrant,
all-embracing state, is showing signs of heading in an increasingly
authoritarian direction."

It would be useful to mention what some of the features of this
increasing authoritarianism are. The following observations may be
made:

1. There is no place in this authoritarianism for law. During British
colonialism in Sri Lanka, from 1815 to 1948, law was established as
the overall organizing factor in society. There was a law for more or
less everything. The operational principle was that whatever any
legitimate authority does should be defined in terms of law. It can be
said that after over a century of government based on law, law became
imbedded in the Sri Lankan consciousness, and therefore a basic
foundation for the rule of law was quite settled in Sri Lanka.

However, the constitutional changes introduced in 1972 and 1978, and
the events of the last 40 years, have undermined that functional
system in which government actions had legitimacy and justifiability.
It is difficult to determine what is legal and what is illegal at any
given moment. This uncertainty and ambiguity runs into everything,
including the criminal law, public law and, to a great extent,
property laws.

This uncertainty and ambiguity have also placed the courts in a very
difficult situation. The importance of the courts has been undermined
to a very significant extent. The overall public perception that has
developed increasingly treats the courts as somewhat irrelevant.

The citizen has lost their belief in the possibility of legal redress
for wrongs they may have suffered. In fact, the uncertainty of the
legal situation also results in ambiguity about what legally
recognized wrongs are. As mentioned this has spread into criminal law
and public law, as well as the property laws.

Thus, the creation of uncertainty and ambiguity about the law, legal
wrongs and legal remedies has permeated into every aspect of life.

2. Resulting from what is stated in the above paragraph, there is also
uncertainty and ambiguity about all public institutions. What the
parliament is and what it is supposed do are questions that citizens
would find difficult to answer. What practical experience shows is
that the parliament merely does what the Executive President wants and
there is nothing that the parliament can do that the Executive
President does not want. The idea of making laws in line with the
consent of the people is a notion that does not have even the remotest
meaning.

The capacity of the Executive President to do whatever he wants and
get a stamp of approval, either before or after such actions, gives
the appearance of legitimacy to whatever he does. In fact, even that
appearance of legitimacy is not really a requirement, as there is no
real capacity to challenge anything on the basis of legitimacy. Thus,
even the very notion of legitimacy is not a matter of real
significance in many affairs.

3. Undermining of the independence of the judiciary. First of all,
what is said above about the undermining of the law and the problems
that exist in relation the parliament itself have affected the idea of
the independence of the judiciary. Besides that, the system of
appointments and the removal of judges from the highest courts have
created great doubts in the minds of the citizens, including the
lawyers, about what kind of outcome are possible in litigation. The
idea of pursuing litigation on the basis of the belief that the final
outcome would be in terms of the merits of the case has diminished a
great deal. The notion that there are many ways through which
political influence can affect what might happen in a case is deeply
widespread among the people, as well as the lawyers themselves. The
idea that litigation is also a matter of market practices has also
gained ground. All this poses questions as to what might be expected
from the courts.

4. The displacement of civilian policing. What was said above about
public institutions and the manner in which their role and capacity
have become ambiguous is starkly revealed by the nature of the
policing system in Sri Lanka. Its ineffectiveness is not merely due to
the incapacity of the police force itself. Rather, its ineffectiveness
is mostly a product of the overall crisis of the legal and political
systems. Police officers, including high-ranking officers, are often
"powerless".

It is difficult for any officers to fathom what he/she should or
should not do, as extraneous forces often play a role in determining
what should and should not be done. For the most part, the actions of
public institutions are controlled from outside and there is hardly
any practical way for officers not to succumb to these influences.

Besides this, the intelligence services, special security forces and
the armed forces themselves are being called upon to engage in actions
that, in previous times and under a rule of law system, would have
belonged only to the civilian police. These outside forces are
directly controlled by the Ministry of Defence and are only
accountable to those who hold power within that ministry. The crisis
of law and the courts mentioned

A further factor that affects the nature of the police is the
ever-lessening importance given to criminal law and procedure. Both in
terms of the powers and resources given to the police (particularly
from the point of view of budgetary allocations for the actual work of
criminal investigations) the police establishment is treated as an
institution of the least importance. The Sri Lankan police force today
is extremely backwards, both from the point of view of training and
capacity, as well as in terms of the space available for it to
exercise its functions independently.

One of the consequences of undermining this institution is the extreme
use of brutality on suspects by the police. There is a great deal of
documentation on the routine torture that is exercised almost on
everyone brought into a police station.

Resulting from these factors, there has been a breakdown of discipline
within the police establishment. The disciplinary control exercised in
former times no longer exists. Higher-ranking officers are very much
involved in wrongdoings, both from the point of view of political
subservience as well as corruption, as are many of their subordinates.
The hierarchy of the police lacks the authority that their forerunners
enjoyed in previous times.

This collapse of the policing institution aggravates the situation
relating to the law as described in the earlier paragraphs.

5. Political control of the Attorney General's Department. One of the
legacies of the British was the Attorney General's Department, which
was modeled after the British Advocate General's Office. For a long
period of time, this department produced very competent prosecutors
and leading lawyers on behalf of the state. They were aware of the
basic traditions and guarded their independence. The department
developed a very strict protocol in dealing with government
ministries. As the chief legal advisor for the government, the
Attorney General advised the government on the legality of proposed
laws and actions. The whole system was geared to ensure that the
government conformed to the law.

Unfortunately this situation has been undone and the process of its
undoing went on for several decades. It is now in a state of deep
degeneration.

The department is now directly under the Presidential Secretariat. The
protocols that guaranteed independence have been abandoned. The
department has been brought under direct political control.
Prosecutions are filed against political opponents directly under
political instructions. On the other hand, indictments that have
already been filed on sound legal bases are withdrawn or modified to
suit powerful politicians. The Attorney General is supposed to oppose
proposed legislation that is illegal and against the rule of law; this
function is no longer carried out. Even on the matter of the unlawful
removal of the Chief Justice, Dr. Shirani Bandaranayke, the Attorney
General's Department went out of its way to support the government.
Now the Attorney General has himself filed an action against the Court
of Appeal's judgement against the Parliamentary Select Committee, a
judgment that the government refused to carry out. The earlier
tradition of the Attorney General not to support the alleged
perpetrators in cases of human rights violations, particularly
fundamental rights violations, has been abandoned and department
lawyers take an active part in opposing fundamental rights
applications from citizens. There is a deeply negative impression of
the department among the people.

6. The emergence of the all-powerful propaganda machinery of the
state. What is being offered in place of legality and legitimacy is a
propaganda machinery of extraordinary power, which attempts to
convince the people that any action taken by the government is right
and that those who oppose those actions are evil. These attacks on any
kind of rational opposition are part of a most vicious campaign,
unleashed through the media and brought into every house in the
country. Many of the government's actions are prepared for beforehand
through prolonged propaganda, and this includes attacks on anyone whom
the government wants to take action against. The attack on Chief
Justice Dr. Shirani Bandaranayake while she was still in office was
one such vilification campaign, the likes of which had never been
witnessed before. The campaign started with the view to force her out
of office on her own. When that did not take place, propagandizing was
intensified in order to create the impression that the government was
right in what it was doing and that every move taken for the purpose
of her removal was correct. The content of such propaganda is
viciously manipulative, as is the language used.

The lowest levels of language are used to humiliate opponents. The
opponents themselves are not given any opportunity to have their
version of events heard. The hate campaigns against opponents are
reminiscent of the type of medieval campaigns that we read about in
Western history books.

Heavy repression against the free media has also become a permanent
feature in Sri Lanka. Assassinations, abductions, forced
disappearances, causing of physical harm and threats of assassinations
to journalists have created an overall environment of fear and
intimidation. Large numbers of competent journalists have left the
country to live in exile. Besides journalists, media establishments
and publishers have also been targeted in attacks. Creating
circumstances that force private media establishments to sell those
establishments to persons with close association with the ruling
political regime is also a feature of the contemporary situation. As a
result of this repression people have lost the opportunity to listen
to alternative views on matters of public importance.

The consequences of these radical departures

All these radical departures from what existed in the country have
already continued to have extremely disastrous consequences. Some such
consequences are as follows:

a) Resorting to direct violence. This direct use of violence is
facilitated by various developments. One is a change in the practices
relating to arrest and detention. There has been a large-scale
practice of killing persons after detaining them. This began in the
aftermath of the 1971 JVP insurrection, during which, in general
estimations, around ten thousand persons were killed. These killings
were not combat killings. People were arrested, often interrogated,
and thereafter disposed of. This practice was again continued in the
South, from 1987 to 1991. The government appointed Commissions into
Involuntary Disappearances, which recorded that there were around
30,000 such disappearances. As the commissions pointed out, the word
'disappearance' during this time meant abductions in place of arrest,
followed by interrogations, killings and the disposal of bodies. A
similar practice was also carried out in the North and East throughout
the 27 year conflict between the LTTE and the government.

In Sri Lanka, the idea of taking political prisoners does not seem to
exist (except in rare instances), particularly after the killing of
several prisoners during July 1983 Riots. Instead, killing after
arrest became a frequent practice. There may be complex reasons that
give rise to this situation. The overall approach seems to be based on
the fact that that this method is the most convenient and does not
carry many logistical and administrative obligations. The whole matter
is over within a short time; after the disposal of the body. If
political prisoners are to be kept, arrangements need to be made for
recording their statement and other matters, and this leads to
obligations under the criminal procedure laws. Perhaps the most
difficult obligation is to ensure that there is an investigation that
could lead to evidence justifying the arrest and detention in front of
the courts. On the other hand, when people are made to disappear after
arrest, large-scale administrative arrangements are not required.
Disposal of persons in this manner also removes the obligation to keep
people in prisons. Keeping political prisoners in prison imposes very
heavy obligations. There are the ordinary obligations of giving
prisoners food, space and facilities for sleep, health and sanitation.
Equally important are the heavy security obligations. As political
prisoners may have their organizations, there may be attempts to
rescue them from prisons or on their way to and from the courts. There
are even greater difficulties from the heavy political propaganda that
comes as a result of keeping political prisoners. So long as prisoners
are in custody there will be agitations for their release from
political organizations, human rights groups and the families of the
prisoners. During elections, matters relating to political prisoners
can weigh heavily against the incumbent government. From the point of
view of the media, the existence of political prisoners generates much
news and political commentaries. All such complex issues can be
conveniently avoided by disposing of persons after arrest.

This method also has the further effect of creating enormous
intimidation in the population. Such intimidation deters many people
from participating in political agitation and protests. Keeping this
level of intimidation high is quite advantageous when maintaining an
authoritarian form of government.

The decisions in relation to such extrajudicial killings are left to
the security forces or the police. In such extrajudicial killings, the
functions of arrest, interrogation, execution and disposal of body are
all left to the decision of whoever does such killings. Due process
and decision-making by the courts are thus taken away. Of course, the
possibility of appeals does not arise at all.

Fabrication of charges

Arrest and detention, sometimes leading to charges being made in
courts, sometimes leading to extrajudicial executions, are often done
after fabricating accusations without any factual basis. Sometimes
such accusations are made by the police or security officers
themselves and, on some occasions, false witnesses are found to make
some complaints that enable arrest. Sometimes such fabrication of
charges is done for political purposes. There are many occasions on
which this has been done for other purposes, such as for eliciting
bribes or to intimidate persons. Often, charges of drug possession are
made on innocent persons when they bring complaints against the police
or security forces regarding violations of their rights. The threats
of bringing such charges have frequently been used to intimidate
persons.


b) The loss of the memory of the law, legal procedures and legal
redress. Further consequences include the problems of the legal
system, described as a loss of memory regarding law, legal procedures,
courts, and other aspects of legal redress. During the period of over
a century under colonial rule, a system of law was introduced and, as
a result, mental and social habits were developed. During the last 40
years, along with the undermining of the legal process, much of this
memory has been wiped out. Lawyers complain about many judges having a
much lower quality of legal understanding than in previous
generations, which helps to create the crisis of law. There is also a
stark degeneration in relation to legal knowledge and ethical
practices amongst the lawyers themselves, and it is also spreading to
litigants.

In fact, the entirety of the population is losing this memory of the
law. With time, such loss of memory becomes much greater.
Additionally, extra-legal methods for resolving conflicts develop.
Through this, new mental habits and attitudes are formed, which spread
to everybody; ordinary people, lawyers, judges, politicians,
prosecutors and the like. Thus, while positive knowledge about the law
is lost, there is a negative kind of knowledge about doing things by
illegal means that is being spread. As a result of this, there is a
development of underground and powerful elements, which attempt to
intervene to resolve problems through direct violence.

c) The spreading negligence in the machinery of administration. As a
result of the loss of the relevance of law, and the loss of law-based
administrative practices, negligence has spread to all areas of the
administration, including local government administration. In earlier
times there were supervisory and monitoring mechanisms inbuilt in all
programmes and projects. However, such supervision and monitoring has
weakened so much that many negative developments are not noticed and
there are no attempts to take preventive action to avoid serious
adverse consequences.

Some glaring instances have already surfaced. For example in
Mullative, Kilinochchi and Vavuniya in the Northern Province, there
are problems relating to severe shortages of clean drinking water.
People undergo severe difficulties and there has been an increase in
health problems due to poor quality drinking water. Similar complaints
about drinking water also exist in the North Central Province and Uva
Province, and there are complaints about the large number of cases of
chronic renal failure. The problems relating to drinking water in
Rathupaswela, Weliweriya (in the Western Province) surfaced recently,
caused, it is believed, by the operation of a factory dealing with
rubber products, where the release of waste water into the surrounding
lands has resulted in increased acidity levels in the ground water.
Under the previous administration there were regular checks of such
factories because of the possible effect on the health conditions of
the people in the surrounding areas. However, such monitoring has been
neglected. Also, for several years now, Dengue Hemorrhage Fever has
spread to the point where it has reached epidemic level. Earlier there
existed an efficient system of mosquito control and other such
parasite controls, and significant achievements were made. However,
the problems caused by neglect in the present system of administration
prevent concerted efforts from being made to overcome this problem.

The efforts to control illegal narcotics have also seriously failed.
There are regular reports about the drug trade, which is widespread in
the cities, as well as in other areas of the country. The prosperous
drug trade operates with impunity and manipulates the already weakened
legal system in the country. As a result, drug addiction has become a
serious problem.

Associated with this problem is the spread of money laundering.
According to reports, Sri Lanka has become a hub for money laundering
in the region.

These are only few examples of the manner in which the spirit of
neglect has now spread throughout the administration. It is very
likely that many other unforeseen problems will occur due to this
neglect, in all parts of the country and all areas of life.

d) Unprecedented levels of corruption. The success achieved by the
Commission to Investigate Allegations of Bribery or Corruption is very
limited. In the past these issues were not such big problems, but now
one of the areas in which law enforcement is most ineffective is in
relation to bribery and corruption. The present administration of the
commission has failed to take any effective action relating to those
who are part of the ruling political regime and its associates. The
commission is instead being manipulated for political purposes. It is
used as part of reprisals against those who are politically targeted
by the government. A clear example of this is the action taken against
Chief Justice Dr. Shirani Bandaranayake. Corruption has spread to the
extent that the country's business sector, including the foreign
investment sector, is deeply affected by this problem.

There are reports about many persons being threatened to sell their
properties far below value. When so threatened, these persons have no
option but to comply. Law enforcement officers are often a part of
such corruption networks. The recent arrest of a Deputy Inspector
General of Police, who is alleged to have been involved in the killing
of a businessman on a contract given to him and a gang that operated
under him, is an indication of the extent of the linkage between law
enforcement agents and the networks involved in corruption. Many
scandals that have come to public notice relating to the stock
exchange also manifest the depth of the prevailing corruption. Given
the crisis of law explained above, there is no solution to this
problem of corruption. It is likely to spread even more and negatively
affect all areas of life.

The loss of memory also affects the whole of the civil administration.
Previously, traditions were established to ensure rational
administration within the civil service. However, all these habits
have now been lost due to political manipulation, which the civil
servants have been unable to resist. The loss of the discipline that
was established through long years of education and development of
individuals who personified the best aspects of rational
administration will be one of the greatest problems that the country
will be faced with in the future.

One of the results of the collapse of the discipline in the civil
administration is the large scale brain drain. Educated, well-trained
and highly motivated persons who do not want to be a part of corrupt
system of administration look for other avenues of employment, which
they often find outside the country. This brain drain will also be one
of the factors that will create very serious negative consequences for
Sri Lanka in the future.

e). Rising intolerance. Undermining the law and administration of
justice has provided a base for any kind of fanatic to provoke
violence against others. There are often attacks on minority religious
groups. There have been reports of attacks on mosques and churches.
Hate speech against one religious group by another is also common.
Thus, the crisis of law has removed the environment that is needed for
tolerance and peaceful coexistence. When government comes under
criticism about the failure to prevent such attacks, it makes some
public pronouncements about protecting minorities. However, when the
whole legal system is in chaos, the government does not have the
capacity to do anything beyond making such pronouncements. The
provocateurs manipulate the crisis of law enforcement to their
advantage.

f). The North and East, and prolonged conflict related issues. The
overall crisis relating to the law and system of administration will
remain the greatest obstacle for achieving a solution to the specific
problems in the North and East, including conflict-related
accountability and the reconciliation issues. The displacement of the
civilian police, and the replacement of it with military, intelligence
services and special security services, have had a profound impact on
the situation in the North and East. The government's propaganda,
carried out through its media channels, about the possible return of
the LTTE also profoundly affects this situation. If law is not going
to be the basis of social organization, then how could the problems
affecting the people of these areas be resolved on the basis of
equality before the law? The crisis of the legal environment of Sri
Lanka is the most fundamental problem that affects all its minorities,
including the Tamils. Unfortunately this issue is not being raised
with adequate seriousness by the Tamil diaspora, who still want to
find the solution to problems in the North and East alone. However,
such a perspective is practically impossible to implement as the
overall crisis of the legal environment is the unavoidable obstacle in
every step of the way to finding a solution to the minorities' issues.
Additionally, those who oppose special attention being given to the
minorities' issues are able to manipulate the crisis of the legal
system to the disadvantage of the minorities. The highly provocative
political environment in the country could be manipulated to cause
disturbances for some time to come.

g) No implementation of the LLRC recommendations. The precondition for
the implementation of the LLRC recommendations is the rule of law. As
repeatedly shown in this report, the overall crisis of the
administration of justice is incompatible with the rule of law. It
this incompatibility that effects the implementation of LLRC
recommendations, which have been the core issue of the contestation
between the government and the international community's demands for
peace and reconciliation.

h) Overall negative psychological impact of the crisis of law and
administration of justice, and the resulting insecurity of the entire
population. The entire population of Sri Lanka is psychologically
oppressed due to the environment of lawlessness and the absence of
protection through a functioning system of administration. This
psychological condition affects the health of the people. While all
are very badly affected, it is the children who suffer the most. They
lack an environment within which they could develop their
personalities on the basis of positive human values. The scars caused
by these psychological situations will have a lasting impact on the
future of all these children. Students studying in the universities
are being adversely affected by this psychological environment. The
government often treats the students as a possible threat to security.
The highly disturbed environment also prevents a regular way of life
for these students and exposes them to many difficulties in engaging
in their academic work. The women are especially affected by this
environment where insecurity becomes the normal way of life. Thus
everyone is facing a traumatic situation all the time and there is no
way of out of it.

References

1. Fernando, Basil, Gyges' Ring -- The 1978 Constitution of Sri Lanka,
Asian Human Rights and Rehabilitation (AHRC) and Research Centre for
Torture Victims (RCT), August 2011
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2011/GygesRingSL.pdf/view

2. Fernando, Basil, Recovering the authority of public institutions -
a resource book on law and human rights in Sri Lanka, Asian Human
Rights Commission, 2009
Internet link: http://www.humanrights.asia/resources/books/AHRC-PUB-002-2009/RecoveringTheAuthorityOfPublicInstitutions.pdf

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Corpus in Sri Lanka; Theory and Practice of the Great Writ in
Extraordinary Times, Law & Society Trust, January 2011
Internet link: (Click Here)

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May 2013

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by. Asian Human Rights Commission, March 2013
Internet link: http://www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake/AHRC-PRL-052-2012.pdf/view

7. Fernando, Basil, Narrative of Justice in Sri Lanka: told through
stories of torture victims, Asian Human Rights Commission, 25th June
2012
Internet link: http://www.humanrights.asia/resources/books/narrative-of-justice-in-sri-lanka/narrativeofjusticesl.pdf

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