By Basil Fernando
In recent weeks there has been a convergence of ideas within and outside Sri Lanka that the most important obstacle to the achievement of human rights is the failure to investigate and prosecute crime.
Many journalists have fled the country, realizing that justice and protection are impossible. The Bar Association of Sri Lanka has come forward more strongly than ever to demand protection for its members so they may practice their profession without reprisals. Many civil society groups have got together to defend freedom of expression and the right to life. In all discussions within the country, the absence of the rule of law has been identified as the cause of the people’s insecurity.
Ten U.N. experts have strongly expressed their concern about the shrinking space for critical voices and the fear of reprisals against victims and witnesses. This, along with a lack of effective investigation and prosecution procedures, has led to impunity for human rights violators. Six former U.S. ambassadors have also spoken in the same vein and asked the president of Sri Lanka to provide clear leadership in dealing with this situation.
This convergence has been thrust forward by the assassination of journalist Lasantha Wickrematunge. Wickrematunge walked into a death trap he knew was waiting for him and was killed on Jan. 8. His deliberate action exposed the traps that await citizens who dare to express themselves.
Whatever one’s views of Wickrematunge’s writings, it cannot be denied he made a bold decision that will not be easily forgotten. In enormous political and social crises individuals sometimes make decisions to save the lives of others, heedless of the peril they bring upon themselves.
Sri Lanka’s public institutions are collapsing, particularly its criminal justice system. This has finally come to widespread attention both locally and internationally. In fact, the Sri Lankan Parliament drew attention to this as early as 2001 when, in a rare demonstration of unanimity, it adopted the 17th Amendment to the Constitution to deal with the problem.
The Parliament identified politicization as the cause of the collapse of public institutions – direct interference by the government and politicians into the workings of public institutions, depriving them of independence and the capacity to uphold proper norms and standards. The failure of the police and justice system to investigate and to prosecute crimes is a result of this politicization.
It is an enormous advance that the demise of the criminal justice system has been widely recognized in Sri Lanka. However, the problem remains as to how to resolve the situation.
The six former U.S. ambassadors told the president, “We urge you to take steps to reestablish accountability and the rule of law in Sri Lanka. Investigations have been promised before but have been futile.” They further stated, “Only you can provide the leadership and clear direction that will make this happen.”
Wickrematunge also addressed the president in a statement published posthumously: “In the wake of my death I know you will make all the usual sanctimonious noises and call upon the police to hold a swift and thorough inquiry. But like all the inquiries you have ordered in the past, nothing will come of this one, too.”
These two positions, one expressed by the six ambassadors and the other by Wickrematunge, express the complexity of the problem of justice in Sri Lanka.
On one hand, power rests entirely with the president. Only he is legally authorized to take steps to reform the present situation. On the other hand, in actual experience presidential interventions have meant nothing more than public statements. They are not backed up by a clear strategy or action to revitalize the administration of justice.
The absolute power of the president and the independence needed for the functioning of public institutions are at loggerheads. The result is that almost all functions come under the direct control of the president. As a former minister of the present regime pointed out, no minister has any real power.
In a well-functioning state it is not the duty of the head of the state to decide who is to be investigated or prosecuted. It is not for the head of state to decide on the details of contracts, tenders, appointments, transfers, promotions, the disciplinary control of civil servants and similar details of the administration. These are done by independent institutions, which are regulated by law.
Each institution performs its functions with relative independence within the parameters of professionally acceptable standards. The abandonment of institutional independence in favor of the executive president as the sole controller of everything has created the institutional confusion and collapse that exist today.
Now that there is consensus that the criminal justice system in Sri Lanka is a failed system, the cause of this situation must be addressed. Only a thorough and well-researched analysis of the problem can provide positive practical action for change.
Some research has been done into the crises facing the criminal investigation system and the prosecution system under the Attorney General’s Department. More work is needed in these areas to help shape public opinion locally and internationally in order to achieve the required change.
Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.
http://www.upiasia.com/Human_Rights/2009/02/13/sri_lankas_broken_institutions/2103
මා ‘අධිනීතිඥ’ නාමය භාවිතය කිහිප දෙනකුට ගැටළුවක් වී ඇති සෙයකි. 1973 දී ශ්රී ලංකාවේ නෛතික වෘත්තීන් අතර තිබූ වෙනස නැති කරන ලද අතර, එතෙක් භාවිතා වූ Advocate හා Proctor යන වෘත්තික නාම වෙනුවට සියළු නීති වෘත්තිකයන් පොදුවේ නීතිඥයන් (Attorney-at-Law) හැටියට හඳුන්වා දීමේ සම්ප්රදාය ආරම්භ විය. මේ සම්මුතිය උපුටා දක්වමින් සමහරුන්ගේ අදහස් වී ඇත්තේ මා මේ පදවි නාමය භාවිතය වැරදි බවය. ඒ අරුතින් ඔවුන් හරිය.
