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Sunday, April 21, 2024

A government not bound by the law

Kishali Pinto Jayawardene 
Does the Government of Sri Lanka need a ‘roadmap’ to implement the existing law in Sri Lanka? From where does this curious logic arise?

Recommendations already prescribed by law

These are two fundamental questions that should be directed towards the Presidency downwards. The Lessons Learnt and Reconciliation Commission’s recommendations were, in many respects, a reiteration of the basic duty on the part of the Government to implement the existing law and the Constitution. Those recommendations that go outside that boundary and call upon legal reforms are also commonly accepted imperatives such as the need for Sri Lanka to have a Right to Information law and to criminalize enforced or involuntary disappearances. There is nothing startling or astonishing about either of these categories of recommendations.

The disarming and prosecution of political thugs holding illegal firearms and members of illegal armed groups is already mandated by law. The observance of stringent safeguards regarding arrest and detention, the warning that detainees cannot be held for long periods of time without charges being brought against them and the duty to prevent the harassment of media personnel, is already prescribed by the law.

The list of such LLRC directives traceable to existing legal norms and principles is long. What is quite remarkably clear is that strenuous thought is not needed to implement many of these recommendations if this Presidency and this Government had the political will to do so. Despite President Mahinda Rajapaksa’s very bewildering claim that ‘a lot has been done’ to implement the LLRC’s recommendations in his Independence Day address, the reality is to the contrary, indicating beyond all doubt that this is a government not bound by the law, a fact that the Sri Lankan people, from South to North are now increasingly at one in accepting.

Politically backed killings of protestors

This week’s use of live bullets by Special Task Force commandos against protesting fisherfolk at Chilaw resulting in the death of one fisherman and the police crackdown on the protest demonstration of the United National Party in Colombo is just two of the many examples that prove this point. Just two weeks ago, a peaceful demonstration by media organizations in the capital was disrupted by thugs carrying clubs who were allowed to violate a magisterial order that there should be no public disturbance, with impunity.

If we are to go by reports, this Friday, a Magistrate’s Court issued a directive to the family of the fisherman who was killed in Chilaw, that a peaceful funeral should be ensured. But where is the accountability of the commando who shot live bullets into a crowd in such a manner as to cause the death of a man? Was this not the very same totally unacceptable modus operandi followed by the police in response to the Katunayake Free Trade Zone workers protests which resulted in the death of one young worker? His family still laments for justice.

The people have no faith and no patience in departmental inquiries. In instances where there is tremendous public agitation, for a few days, the newspapers report that those responsible have been questioned and then the matter is slowly allowed to fade away. Regardless to say, where the victims are even more marginalized, such as when deaths of Tamils and Muslims occurred due to the police and army shooting into crowds protesting over the ‘Grease Yaka’ phenomenon in the North and East, these happenings faded away from public consciousness even more quickly. Reports of committees appointed to look into these fiascos are also not brought into the public forum and only the wastage of public funds can be seen. This has been the pattern of events.

Force used must be proportionate to the threat

Again, the contrast with the factual reality and the directives of the LLRC cannot be starker. The LLRC viewed with alarm, disruption by the police and the military of peaceful protests and pointed out that people, community leaders and religious leaders should be free to organize peaceful events and meetings without restrictions. In the events that have occurred post the LLRC report, is the Government seen to respect this recommendation? The answer to this question must be unequivocally in the negative.

Again the LLRC’s concerns only reflect a common principle in the applicable law and legal precedents. As has been observed on innumerable occasions by Sri Lanka’s Supreme Court in the past, ‘streets and parks and public places that have been customarily used for purposes of assembly, communicating thoughts between citizens, and discussing public questions are held in trust for the use of the public and use of such public places are part of the privileges, immunities, rights and liberties of citizens” (Saranapala v Solangaarachchi and others, SC (FR)No: 470/96, SCM 17/07/1997). Citizens therefore have a right to demonstrate and to protest.

Even if crowd unrest is demonstrated, the police is mandated to use the minimum extent of force as laid down in the law and departmental circulars. This is a basic principle that even a police recruit is aware of. Yet, in regard to the Chilaw demonstrations, the FTZ protests and the ‘Grease Yaka’ protests in the North and East, the police, the STF or the military shoot to kill. Is this now an official part of police directives issued to the Department by the Ministry of Defence? We would like to have some enlightenment on this question.

Rioting crowds on the streets in unruly demonstrations are only natural when all other avenues of legitimate protest and dissent are shut down. As the country boils in ferment with a long predicted economic implosion and colossal amounts of money are wasted on extravagances for politicians and their progeny while ordinary people collapse under the weight of their misery, Sri Lankans need to ask themselves as to whether this is what they wanted for the country to become when the war in the North and East ended in 2009?

Appointment of useless constitutional Commissions

Accompanying this ferment, the Government announced this week that a National Police Commission has been appointed. Let us be very clear on this. A farcical Commission unable to change the status quo in regard to the complete breakdown of law and order in the face of overpowering politicization of the police, will only make the situation worse. From the point of disregarding the 17th Amendment after 2005 which resulted in a toothless Police Commission taking up massive amounts of public funds for the salaries of the Commissioners, for the staff and for rentals with nothing to show at the end of it, this exercise has gone on long enough.

Under the 18th Amendment, there is no possibility of an independent Commission being allowed to function. What we will have is a Commission along the likes of the National Human Rights Commission which (it appears) bestirs itself occasionally only in regard to such weighty issues such as the pollution of the environment by roofing manufacturers, as was reported this week. Sarcasm aside, what the LLRC recommended was firstly, a delinking of the Department of the Police from the Ministry of Defence and secondly, an independent permanent Police Commission.

These two requirements cannot be satisfied by putting into place a Police Commission under the 18th Amendment. The matter is as simple as that.

The previous Police Commission, (which was unconstitutionally appointed with the disregarding of the 17th Amendment), could not do anything concrete to bring about discipline in the police force since even their meekest directive was countermanded by politicians. Ironically a key point focused on by the LLRC that police officers should be punished for their failure to record complaints and take action, was already contained in the Public Complaints Procedures that were gazetted during this period. These Procedures had been drafted by the first Police Commission constitutionally appointed under the 17th Amendment by the then President with the assistance of independent lawyers and civil society. However, they were brought into law only years later. Even then, the Procedures failed to have any impact whatsoever on the practical functioning of the police.

As the LLRC quite correctly observed, the Department of the Police is a civilian institution and cannot justifiably be linked to the military. This de-linking is essential. For that too, one does not need a roadmap or a time frame. Immediate action can be taken. In the absence thereof, even the last shred of credibility that clung to this Government’s repeated protests that it will abide by the recommendations of its own homegrown inquiry commission, is stripped away.

Sole responsibility of the Presidency and the Government

Certainly in that context, the announcement by the Army that it will constitute a body of inquiry to look into allegations of human rights abuses during the war can only be met with disdain. Accountability cannot come through the army looking into its own just as much as it cannot come through the police looking into its own. As the LLRC recommended, Sri Lanka’s investigative and prosecutorial systems must be vested with the necessary institutional independence and strength to undertake these tasks. The judiciary must also be, like Ceaser’s wife, not only above suspicion but must be seen to be above suspicion. In the absence thereof, we must be prepared for external interferences on Sri Lanka for which this Government and this President should solely shoulder the blame.


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