by Kishali Pinto Jayawardene
These are cataclysmic times marked by complete public cynicism regarding the value of the law, when the Judicial Service Commission has been unrelentingly attacked by the state media and its Secretary complains publicly that there are fears for the security of even ‘the person holding the highest position in the judicial system’ (see Daily Mirror of September 29th 2012).
Enlightened law reform now redundant
Perhaps however, through the extremity of the crisis, we may indeed hope that a newer form of critical thinking may emerge regarding the hugely dangerous nature of the political authoritarianism that now confronts us as well as our own failures which may have stemmed the tide at an earlier point of time.
Certainly, the law has been rendered at naught. Reformers who earlier argued that the focal point of change was enlightened law reform, whether in relation to civil liberties or general governance, must now take a step back and concede that this, by itself, is a superficial gloss.
The actual issue of injustice superimposed by what a friend and colleague recently referred to as the ‘patronage system’ replacing the Rule of Law, will not be addressed by mere law reform. Necessarily, our thinking has to delve much deeper into fundamental problems with our current political order.
Criminals running rampant
Take the recently touted Witness Protection draft law for instance.
Would any thinking person believe that the horrendous breakdown of law and order and the negation of the legal system in imposing accountability on criminals and rights abusers who manage to threaten witnesses against them and even kill these unfortunates on occasion, will be corrected if this draft law is enacted?
Hardly, one would think. To be effective, a Witness Protection system must be handled by competent officers with security of tenure and completely independent from the police structures and from political interference, at the minimum.
But what do we have? Criminals (including Ministers who instigate crowds to attack court houses) roam the country at large protected by political patronage with the police helpless to stop them.
Would a Witness Protection law offer any solace against these rampant law breakers? The question is self explanatory.
It will be just another glorified law on our statute books for this government to parade before the world as marking yet another milestone in its record. This travesty is a bitter mockery of what the law should mean to ordinary people in this country.
Pervasive problem with accountability
The patronage system that has now pervaded every sphere of our administrative, policing and legal process is a matter that affects the majority and the minority communities equally.
As this column has repeatedly emphasized, torture and cruel, inhuman or degrading treatment is practised against ordinary Sinhalese, Tamil and Muslim people by police and prisons officers though the motives may differ.
As documented research studies have shown, these motives include personal spitefulness on the part of those in power, personal or professional greed. When victims are brave enough to invoke the law to obtain redress, they and their family members become targets of further attacks by law enforcement officers themselves.
In turn, these officers are protected by the politicians. The enactment of the Witness Protection draft in its present form cannot change this dynamic.
What is needed rather is increased public demand for complete overhaul of the criminal justice and policing systems coupled with a well drafted law protecting witnesses as well as complainants.
For this, the delinking of the Department of the Police from the Ministry of Defence is essential. The recommendations of the Lessons Learnt and Reconciliation Commission in that respect have been predictably brushed aside by the government. It was not to be expected that this concrete change in policy would be easy.
Strong public opinion to that effect is therefore needed. Instead of an Attorney General subjected to political pressures, an Office of an independent Prosecutor (appointed by consensus of all parties in Parliament and with the salaries of its officers chargeable on the Consolidated Fund) needs to thereafter handle the prosecution of these cases.
Challenging the government
Predominantly, the impact of the 1978 Constitution has been pivotal in the ineffective functioning of the criminal justice system.
The Constitution privileges emergency law over ordinary laws, including the normal criminal procedure, penal law and evidentiary rules, and in so doing, bypasses the principle of the presumption of innocence in favour of emergency law.
In a wider constitutional context, the head of the executive is effectively placed above the law by virtue of Article 35(1) of the Constitution and therefore cannot be called to account for any omission or commission even if blatantly unconstitutional. This constitutional bar has been primary to the denial of accountability.
A serious push for change needs to be demonstrated through a common front that will challenge this government at each of these levels. It is encouraging that such common thinking is now increasingly being evidenced through public protest movements in cities and village communities.
We can only devoutly hope that this would achieve the necessary critical mass leading to change in Sri Lanka, filling a vacuum left by a spectacularly useless political opposition that can only take refuge in pathetic bleats of endless complaints against the government. COURTESY: SUNDAY TIMES