Kishali Pinto Jayawardena
Are we a nation of savage beasts that a drunk State Minister, ironically tasked to oversee prisons reforms, can ‘allegedly’ (a caveat that we are duty bound to enter) lurch into the Welikada and Anuradhapura prisons on sight-seeing expeditions to ‘show the gallows’ to his acolytes in one instance and threaten prisoners of Tamil ethnicity in another?
Violation of the law at several levels
Let us be clear. It is not prisoners who are facing ‘the gallows’ but the State of Sri Lanka. This is a classic example of raw political savagery that has crucified this nation in the eyes of the world.
It is no answer to say that Minister of Prisons Reforms and Rehabilitation Lohan Ratwatte was carrying a licensed firearm when he ‘allegedly’ put that firearm to the heads of two prisoners, saying that he can shoot them if he pleases. The issue is not whether the firearm was licensed or not but the fact that the law was violated at several levels in a manner that truly beggars the imagination
Firstly, not even a Minister holding a supervisory portfolio is legally entitled to ‘visit’ the prisons at his whim and pleasure, inebriated or not as the case may be. Secondly, as any child would know, a politician had no right to use prisoners as his chattels. What next, we may well question?
Will prisoners be used for ‘hard labour’ by politicians akin to the slaves of yore? Comparisons between this and other thuggish behaviour of politicians in state institutions are ridiculous. For example, yes, we remember a ‘yahapaIanaya’ era (2015-2019) Inspector General of Police (IGP) grabbing a lift operator at the Police Headquarters by his collar and threatening bodily harm.
That IGP, as we may recall, was one of the more obnoxious appointments of the Sirisena-Wickremesinghe coalition Government who disgraced his office in more ways than one, finally crowning fiasco after fiasco with criminal negligence over the Easter Sunday jihadist attacks in 2019 for which, he served a term in jail to get his political superiors off the hook. Or, as one of the more eager propandists of the Government blustered, ‘yahapalanaya’ politicians running amok at a television station once upon a time.
Duty of care of prisoners and the constitutional standard
But these comparisons are simply not tenable to be put on par with the ugly scenes (allegedly) enacted by a ministerial reprobate at the Welikada and Anuradhapura prisons this week for a particular reason. Simply put, there is a special legal status afforded to prisoners as emphasized by numerous decisions of the Sri Lanka Supreme Court that places them in the custody of the State. That duty of care holds the State liable when the rules of custody are violated.
This standard has been upheld to the point to encompass prisons officials who commit sins of omission when prisoners are ill-treated by others.
Thus, senior prison officials have been held to be culpable for torture of prisoners by subordinates, for ‘looking away’ and as the Court put it beautifully in many notable examples of custodial torture, for ‘acquiescing’ in the violation of rights even if they did not directly take part in such acts. Instances of prison officials being slapped with ‘dereliction of duties’ for not preventing assaults and holding them responsible for the infringement of fundamental rights guaranteed in terms of Articles 11 and 13(4) of the Constitution, litter our constitutional case law books.
Prisons officials were reminded of their duty to ‘take all reasonable steps to ensure that persons kept in the prison are treated with kindness and humanity…’ This is the constitutional standard in respect of prison officials who do not take action when marauding police officers assault and slap prisoners. If so, what can one say of marauding Ministers who treat prisoners like their personal property?
As a wit commented, any Minister who acts in this way must be rehabilitated first before the prisoners whose well being he was tasked with.
Public confidence in the State
But as we recoil from this incident, there is a larger question of impunity that lies at the core of the issue. Where is public confidence in the State that an independent and impartial inquiry will be held, that fit and proper punishments will follow not only for the Minister but also the prison officials who enabled such acts?
The fact that this Minister resigned from the post of prisons reforms is no answer. The criminal law must certainly be enforced against those responsible.
So even as his colleague in the ranks of Government, former professor of law turned politician GL Peiris was informing the United Nations Human Rights Council that Sri Lanka rejects external interventions in regard to the ‘accountability question’ because ‘domestic processes are vigorously addressing relevant issues’, manifest contradictions were in play. Evidently the only ‘vigour’ that Sri Lankans could see was this inebriated State Minister ‘allegedly’ storming the prisons to abuse incarcerated citizens of minority ethnicity whom the State has a constitutional duty to protect.
It is not UN Resolutions that ‘polarise’ Sri Lanka, contrary to what Minister Peiris inventively declared in Geneva this week. Rather, it is our Governments, without exception, which are responsible for dividing communities, degenerating the very meaning of citizenship and diminishing the stature of the State. This is true of both the Government and the Opposition, at varying levels of responsibility. Bewailing ‘international conspiracies’ are a poor excuse for what remains our own abysmal failures to act by the law and by the Constitution.
A crisis of political credibility
Further, this Gadarene slide into anarchy was not of recent origin, however much the ‘yahapalanaya-ists’ may screech of the ‘Rajapaksa-State.’ On the contrary, the Rule of Law was under attack long before, from the unprecedented cheapening of the Office of the Chief Justice of Sri Lanka under Chandrika Kumaratunga to the dangerously risky constitutional adventurism of the 2015-2019 Sirisena-Wickremesinghe coalition.
That mix of arrogance and ignorance underpinned by the spectacular debasement of the Central Bank was part of the inevitable slide onto the edge of the abyss where we find ourselves at.
Opposition parliamentarians who complain of the newest incumbent to fill the Governor’s chair at the Central Bank cannot be taken seriously therefore when their studied silence during the ‘yahapalanaya Bond scam’ speaks more loudly than agitated screeching now. This crisis of credibility has crippled political leadership across Government and Opposition benches.
Sri Lanka has been cursed by alternating political regimes of either neo-liberal nonsense with no moorings to the concerns of ordinary men and women or racist Deep State leadership with a dash of plain and ordinary thuggery thrown in.
Each of these toxic political manifestations feed off the other with its leaders inextricably interlinked both personally and politically. As Sri Lanka regresses into the beggarman/woman of South Asia, that cruel cycle continues.