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SUBMISSION TO THE CONSTITUTIONAL REFORMS

COMMITTEE

Sri Lanka

By

THE ASIAN HUMAN RIGHTS COMMISSION

Hong Kong

This submission is made on behalf of the Asian Human Rights Commission based in Hong

Kong and also on behalf of Mr Basil Fernando, Sri Lankan citizen and Attorney-at-Law.

Particular concern addressed by this submission

The particular concern this submission addresses is the restoration of the supremacy of law

and the reform of law enforcement agencies, the police service in particular, the Attorney

Generals Department, and the judicial institutions.

14th January 2016

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In this submission we argue,

That the state of the law enforcement agencies, particularly the policing service, and

other branches of the administration of justice, the Attorney Generals Department, and the judiciary in Sri Lanka is in a state of serious collapse;

So long as this state of collapse remains, it would not be possible to implement any

constitution within the framework of the rule of law under the principles of the

Supremacy of law;

What this implies is the very status of the concept of legality is under serious threat

in Sri Lanka due to constitutional experiments of 1972 and 1978, in particular;

Therefore, it is futile to create a constitution that cannot be implemented;

It is thereby imperative that those engaged in the drafting of the newly proposed

constitution should address the matter of enforceability of the constitution through

the law enforcement agencies and the institutions of the administration of justice as

an issue of paramount importance;

This implies that:

A. The Constitution must provide conceptual and a practical programme for revitalising the law enforcement agencies, particularly the policing service and

other branches of administration of justice such as the Attorney Generals Department and the judiciary.

B. That such conceptual and practical measures should address the issues of providing funding for a functional system of law enforcement and judiciary,

whereby the dysfunctional state that it is in now could be brought to an end; A

constitution does not provide a conceptual framework for adequately funded

institutions of justice, which is a dead letter from the very start.

C. There are other measures, that should also be made to ensure the establishment of the rule of law through a functioning law enforcement and judicial

institutions.

D. Among other things, this conceptual framework can be made through a clear and a strong statement of the basic structure of the state of which a functional law

enforcement agencies , in particular the police and the judiciary as an integral

part; this basic doctrine can be derived from the series of Indian cases known as

the Judges cases beginning with 1) The Kesavananda Bharati v State of Kerala and 2) the case of Supreme Court Advocates on record Association and another (

Petitioners) versus The Union of India, decided at the end of the year 2015.

E. The authority of the courts which has been seriously undermined should be reinstated to a position where the courts could function as a separate branch of

government, functioning under the separation of powers principles and the

checks and balances as developed in the constitutional theory (vide The

Federalist Papers); The issue of the impeachment of the Superior Court judges

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should be finally dealt with in terms of the internationally accepted standards.

Regarding the appointment of the Superior Court judges the phrase, in consultation with the Chief Justice should be interpreted in the same manner as it is being done in India in a series of judges cases mentioned above, to mean

that primacy in selection must be in the hands of the Chief Justice and a

collegium of senior Supreme Court judges.

F. At the same time, the meaning of the authority of courts, should include adequate funding for functional system of justice so that adequate number of

judges, court building and all other things that go with it, and adequately funded

criminal investigations branch should be included.

G. The issue of the Commission against Bribery and Corruption must also be dealt with as part of the obligation of the state to use its coercive power to ensure that

all those who work as its officials abide by law meaning that a corrupt system is a lawless system and lawlessness and constitutionality is incompatible.

H. In drafting the section on human rights, the right to life, right to a fair trial without undue delay and an effective remedy for violations of rights which go

far beyond the Article 126 of the 1978 Constitution should be envisaged. Mere

declarations by the Supreme Court and mere symbolic compensation has not

contributed to the ending of serious human rights violations. Therefore, this

constitutional remedy must be strengthened to be in keeping with Article 2 of the

International Covenant on Civil and Political Rights (ICCPR).

I. Eliminating extra judicial killings should be carefully drafted to avoid the repetition of mass killings that have taken place in Sri Lanka over several

decades after their arrests have been secured. In the same manner, elimination of

torture and ill treatment, with an effective remedy to prevent it should become an

integral part of the constitution, given the extremely bad record Sri Lanka has

had regarding this matter.

J. Delays in adjudication including delays in investigations in filing of prosecutions and adjudication in the courts, should be made into a violation of a fundamental

rights to justice and should justiciable both under fundamental rights and other

legal remedies.

These are some of the recommendations in terms of the reflections made in these

submissions. We may make further submissions on these and other matters within the short

time available.

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Contents Particular concern addressed by this submission ................................................................................ 1

CHAPTER 1 - The Danger of creating a paper Constitution ................................................................ 6

1.1 A Letter sent to Mr Lal Wijeyanayeke, Chairperson of the Constitutional Reforms

Committee ........................................................................................................................................... 6

1.2 A Dysfunctional System ......................................................................................................... 8

1.3 Justice System as a Threat to Democracy and the Rule of Law ........................................... 14

1.4 UNHCR Finds Fault with the Police, the Forensic Pathologist, The Attorney General and

the Supreme Court ............................................................................................................................ 17

1.5 Abysmal lawlessness and the zero status of citizens ............................................................ 21

CHAPTER 2 - The Need for Police Reforms ..................................................................................... 26

2.1 A practical illustration of the actual state of the Sri Lankan policing service as illustrated by

the recent Embilipitiya incidents and the challenge to the drafters of the new constitution on the

need to address this issue; A Statement issued by the Asian Human Rights Commission entitled the

Constitution making and brutal police murder at Embilipitiya; .................................................... 26

CHAPTER 3 - Collapse of the Criminal Justice System ..................................................................... 29

3.1 How 63 to 10,000 Ratio of killings by security forces in 1971 caused the collapse of the Sri

Lankan Criminal Justice System ....................................................................................................... 29

3.2 Legal Systems Exposed to Adverse Circumstances BecomeEndangered and Extinct ......... 33

3.3 Sri Lanka: A murder tolerating nation .................................................................................. 37

CHAPTER 4 - Status of legality displaced by 1972 and 1978 Constitutions ...................................... 39

4.1 The displacement of the criminal justice process and its subsequent collapse ..................... 39

CHAPTER 5 ......................................................................................................................................... 41

The adverse impact of delays in the judicial process and how it has adversely affected all the basic

principles on which a credible system of criminal justice is based; ..................................................... 41

5.1 Delays in adjudication as a manifestation of learned helplessness ....................................... 41

CHAPTER 6 ......................................................................................................................................... 43

The loss of credibility of the Attorney Generals Department due to adjustments to the executive presidential system; ............................................................................................................................... 43

6.1 The Attorney General plays a negative role:......................................................................... 43

CHAPTER 7 - HUMAN RIGHTS...................................................................................................... 44

6.1 Right to Engage in Demonstrations ...................................................................................... 44

A letter written to the National Police Commission of Sri Lanka .................................................... 44

6.2 Right to life ........................................................................................................................... 47

Article 6 of the ICCPR Againts arbitrary deprivation of life ............................................................ 48

6.3 The loss of freedom of expression and the intimidation of the media .................................. 49

6.4 Right to fair trial .................................................................................................................... 49

CHAPTER 7 ......................................................................................................................................... 52

7.1 The failure to provide effective remedy to violations of human rights in terms of the Article

2, of the International Covenant on Civil and Political Rights; ........................................................ 52

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Inadequacy of Article 126 of the 1978 Constitution on providing a remedy for human rights

violations ........................................................................................................................................... 52

CHAPTER 8 Inadequate Remedies for violations of rights ................................................................ 53

The failure to provide adequate funds to maintain a functional law enforcement and judicial system;

the resulting dysfunctional state of the Sri Lankan law enforcement and judicial systems. ................. 53

8.1 The need to allocate funds for police reforms - Letter to the Minister of Finance .............. 53

8.2 Letter to the Ministry of Finance calling for adequate financial allocation towards the

modernisation of the institutions of police, justice, corruption control, and for the effective

implementation of the new witness protection law in Budget 2016 ................................................. 56

Response of the Asian Human Rights Commission to the Call for Proposals in regard to the

formulation of the 2016 Budget - issued by the Ministry of Finance, Sri Lanka .................................. 57

Making adequate financial allocation to modernising the policing institution ................................. 57

Financial allocations to uplift the judicial institutions in Sri Lanka ................................................. 58

Budgetary allocations for creating an effective agency to control corruption .................................. 59

Making budgetary allocation for the effective implementation of the new witness protection law . 60

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CHAPTER 1 - The Danger of creating a paper Constitution

1.1 A Letter sent to Mr Lal Wijeyanayeke, Chairperson of the Constitutional Reforms

Committee

Dear Mr Wijayanayake,

Greetings from the Asian Human Rights Commission in Hong Kong.

I am writing to you, first, to congratulate you on your appointment as the Chairman of the

Constitutional Reforms Committee.

I wish you all success, a task which of course is one of the most important and one which

will affect the future of Sri Lanka.

A notice announced with your appointment and that of the Committee, lists 20 topics under

which, opinions are sought from the general public.

While I wish later, to make a lengthier submission in terms of the topics suggested, the

purpose of this particular note, is to bring to your notice one of the possible dangers that

should be very deliberately addressed, if the new constitution is to effectively contribute to

the ending of the colossal crisis in constitutionalism, that presently exists in Sir Lanka and

which has adversely affected the legal system as a whole, and in particular the criminal

justice system - the medium through which all laws are finally implemented. This

constitutional crisis has also affected the entire political system.

The danger I am trying to highlight, is the creation of a good constitution on paper on the

one hand, and the continuity of the bad system that we presently have as a result of

constitutional tom-foolery which has taken place in Sri Lanka since the adoption of the 1972 and in particular the 1978 Constitutions.

The adoption of a paper constitution may not be a difficult task if, there is adequate

parliamentary majority to support such an adoption. This is what has happened also in

certain other countries and one of the glaring examples that I can recall is the adoption of the

new Constitution in Cambodia in 1993. This Cambodian constitution is a perfect piece of a

good liberal democratic constitution on paper. However, the Constitution has had no practical value. The older system which prevailed since the devastation caused by Khmer

Rouge takeover of Cambodia, that wiped out the pre-existing system and which was created

by the French during colonial rule of Cambodia between 1975 and 1979, - thus in a period

of just 4 years, all previous gains in the area of constitutionalism was brought to an end.

After the defeat of the Khmer Rouge by the end of 1979, a new administration was

established, which was created by the Vietnamese experts who were educated in the

communist model of law. Thus, between 1980 and 1992, when the UN Transitional

Authority for Cambodia (UNTAC) was appointed, there was a new system build on socialist

lines which had nothing in common with liberal democracy.

In 1993, when the new constitution was adopted, it was drafted, purely on the basis of

correct principles of liberal democracy, but there was no attempt to create measures to

dissolve the system created between 1990 and 1992. The result that we can see now aafter

about 22 years, is that the new constitution is of no practical value at all. The system created

between 1980 and 1992, is what exists in reality. One of the glaring examples is that the

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judiciary which the new constitution declares as an independent branch of the government

has no independence at all. The judiciary has no power to monitor the executive actions,

however, unacceptable such executive actions may be, when compared with the provisions

of the new constitution. Examples can also be given from other countries about this very

particular problem.

In Sri Lanka, when the 1972 republican constitution was introduced the then constitutional

affairs minister, made the following remark which revealed the drastic nature of change

which was intended to be introduced by this new constitution which impliedly meant the

replacement of all the basic notions on which the Soulbury Constitution, was based upon.

This is not a matter of tinkering with some Constitution. Nor is it a matter of constructing a new superstructure on an existing foundation. We are engaged in the task of laying a new

foundation for a new building which the people of this country will occupy (Decisions of the Constitutional Court to Sri Lanka Vol. 1,1973 p.5)

This dismantling of the fundamental notions of the Soulburry Constitution, was continued

more drastically with the 1978 Constitution. What is spoken popularly today as the

executive Presidential system was not a mere tinkering of the old liberal democratic system,

but a displacement of the liberal democratic system and the creation of a completely new

system.

The system introduced by the 1978 Constitution was implemented from then, till the

January 2015 elections, with only one interruption which was the adoption of the 17th

Amendment to the Constitution in the year 2001. However the 17th Amendment did not go

as far as re-instituting the liberal democratic form of governance in Sri Lanka. In any case,

the 17th Amendment was displaced by the 18th Amendment which went even further than the

original conception of a power model introduced by the 1978 constitution.

The point I am trying to make is that in Sri Lanka, at present, there is in existence a system

which is very different to the liberal democratic model that was introduced by the Soulburry

Constitution. This system that exists in reality is what requires displacement. That cannot be

done by merely re-stating the liberal democratic framework of constitutionalism.

What is required is to develop a constitutional strategy to displace and even outlaw the

actually existing system.

This requires a much more, subtler form of approach than mere re-statement of the

principles.

Let me illustrate this further; the constitution that is to be drafted will naturally state that the

judiciary is a separate branch of government and that the independence of the judiciary is

one of the basic constitutional principles in Sri Lanka.

However, such a statement does not alter the system that exists in reality at present, where

the independence of the judiciary has been undermined, and so drastically. Such

undermining has been done first, by the state not providing adequate funding to ensure a

functioning system which is able to enforce the rule of law in Sri Lanka.

The other way of undermining of the independence of the judiciary has been the wrongful

appointment of judges, and generally bringing down the quality of the judicial institutions.

A litany of other ways by which the judiciary has been undermined has been well

documented, by many critics, and I do not intend to repeat these, here.

The issue is how the virtual dysfunctional state of Sri Lankan judicial institutions and also

the associated law enforcement institutions, namely the institution of the policing service

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can be changed, so that people in Sri Lanka will once again have a functioning legal and

judicial system.

In order to arrive at the kind of measures that could be introduced through the new

constitution, it would be necessary to discuss thoroughly about the ways by which the

existing system could be modified or changed, to ensure that such a judicial system is not

merely conceptually independent but also will be independent in reality.

This means that in the drafting of the constitution, concentration should not only be on re-

instating the correct principles of liberal democratic constitutional traditions, but also on

finding ways to bring an end to the existing practices that contradict the liberal democratic

traditions. Again, to use the example of the judiciary, what this would entail is to provide

measures in the constitution to ensure that judicial and law enforcement agencies are

adequately funded, so that it could overcome the existing problems, for example such as

extra-ordinary delays, allegations of corruption, and all-pervading inefficiency which has

become very much a part of our judicial system. If the new constitution does not create

measures to alter this situation, and if the new constitution allows these defects to continue,

then, the new constitution will not contribute to achieving the practical aims of honouring

peoples criticisms against the existing system. 2015 January 8, and August 17th elections marked, important intervention of the peoples of Sri Lanka, who were responding to a call to

have the entire existing system changed.

What matters in the end, is not whether we will have on paper, a good and a beautiful

constitution, but whether we will succeed in altering the colossally failed system that exists

at present.

Therefore, I suggest that in the drafting process, this problem of altering the system that

exists in reality should be brought to bear, with the view to develop the possibility of a

functioning system of law which would be the foundation, for peoples progress in the future.

Thank you,

With my best regards,

Basil Fernando

Right Livelihood Laureate

Director of Policy and Programmes

The Asian Human Rights Commission

1.2 A Dysfunctional System

A peculiar feature that emerged through the study of the problems relating to the policing

system in Sri Lanka is that the government sources, through various commissions, have

identified the same problems which have been substantiated by independent sources.

That the system has become dysfunctional is a common finding. About the manifestation of

such dysfunctionalism there is no controversy. That a radical change is needed is also

commonly acknowledged. However, in terms of any initiatives for change the issue of

policing is not considered a priority by the government and even independent sources appear

reluctant to make any determined effort in this direction. There also seems to be an

underlying fear that any significant attempt to deal with the dysfunctional nature of the

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system may have adverse consequences on the country's political system and social life as a

whole.

Such reform seems to be regarded as too formidable a task that no one is really willing to

venture into. Besides this, there is also apparently an underlying fear that initiatives to

change the habits that have entered into the system and the incumbents of the system may

cause such retaliation that the political leadership does not feel competent to deal with. It is

not the factual elements regarding the failed political system of Sri Lanka that creates

controversy, but as to whether these problems can, or should be addressed. The suggestion

made in this paper is that it is this overall problem of how to deal with these issues that

needs attention, rather than diagnosis of the various aspects of the ailments that affect

policing in Sri Lanka. Sri Lanka's Dysfunctional Criminal Justice System

The premise

Attempts to reform policing have been initiated in Sri Lanka more than once. Still the

situation remains critical. The hypothesis taken in this article is that reform of dysfunctional

policing system requires a discourse of more fundamental issues such as the nature of the

political system within which policing has to take place.

This article speaks of policing only in areas outside the conflict zone of Sri Lanka in the

north and the east. In many parts of the north and east large areas are outside the writ of the

Sri Lankan police service. In some parts rebels claim to have their own police and

judiciary. Such rebels include not only the LTTE but also some armed groups that are

opposed to the LTTE. This work does not address the policing issues relating to these

areas. It deals with those areas of the country within which the police system still operates

under the ordinary law and legal procedures.

Studies on the policing system

The Asian Human Rights Commission has closely studied the issues relating to policing in

Sri Lanka for over ten years now Some of the publications based on these studies are:

Article 2, Vol. 1, No. 4, Article 2, Vol. 3 No. 1,2 a book entitled An X ray of the Sri Lankan

policing system & torture of the poor,' and several reports submitted as shadow reports to

UN agencies. Much of the material produced is available on the interne.'

There is no significant police reform initiative taking place in Sri Lanka at the moment.

Previously there had been some commissions appointed by former governments which

produced reports analyzing the problems facing the policing system and which made many

recommendations for change. Given the drastic nature of the political and social changes

that have taken place in the country, the contents of these reports may seem somewhat

obsolete by now However, for the purpose of record as well as to provide some reference to

the historical roots of the present day policing system some mention of these reports may be

useful.

A historical perspective

The first of these reports is known as the Soertsz Commission Report which derived its

name from the chairperson of the Commission, Justice Francis J. Soertsz and this report was

submitted in December 1946. The title of the report was 'Sri Lanka police service suggestions for improving its efficiency and effectiveness.' This was published as a sessional

paper and covers such topics as the composition of the force; the conditions of the service

and selection of officers for promotion and transfer; procedure for investigations of

complaints made by the public against the police; the powers and duties of the police,

especially in relation to preliminary investigations of offenses, the arrest and custody of the

accused and suspected persons; the institutions of prosecutions in court and the expeditious

conduct thereof; amendment of the police ordinance and of other

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Some general observations on the previous studies

Already in 1946 a serious crisis in the policing system was perceived and by 1970 much

graver problems had surfaced. Then by 1995 a completely new set of problems had arisen

due to larger politicization of the system and the introduction of paramilitary elements as

policing units such as the Special Taskforce. None of the recommendations of the above

commissions were put into effect.

The 17th Amendment to the Constitution- October 2001

Perhaps the 17th Amendment was the most significant attempt made so far to recognize the

serious problems in the Sri Lankan policing system together with several other public

institutions. The central problem that this amendment tried to address was the politicization

of the public services. This amendment provided for the appointment of a Constitutional

Council who would have the obligation to appoint the commissioners for several

commissions including the National Police Commission (NPC).5 The NPC had the powers

of appointment, promotion, transfer and disciplinary control of all police officers except for

the Inspector General of Police. It also had the duty to establish a public complaints

procedure. The first commission came to be appointed in November 2002 and by the end of

the term of the first batch of commissioners the Constitutional Council had ceased to exist

so that it was not possible to appoint the new commissioners. Ever since, there have been no

appointments to the commission, by the procedure prescribed by the Constitution. In 2006

the Executive President made appointments to the commission bypassing the provisions of

the constitution. As the NPC derived its authority form the constitution itself, the

appointment of its members bypassing the constitution has raised questions about its

legitimacy.

Identification of areas needing reform

At the moment there are no reform programmes being undertaking by the police. However,

there are many areas that have been identified by some senior police officers, international

experts, as well as the public as major areas that need to be addressed in any serious attempt

at reform. These are, the elimination of criminal elements from within the policing system;

to reestablish command responsibility within the police hierarchy; the establishment of a

credible system of criminal investigations; the elimination of torture as the most commonly

used method of criminal investigation; the training of police in the more sophisticated

methodologies of investigations including forensic training, measures to ensure police

attendance in courts and compliance with court orders; the establishment of a proper system

of disciplinary control within the police and the establishment of a credible public

complaints procedure. The elimination of criminal elements from within the policing

system

The Inspector General of Police himself recently identified the criminal elements within the

police together with soldiers and deserters as being among the culprits for some of the very

grave crimes in the country such as abductions, disappearances and murder which increased

sharply at the end of 2006 and continuing into 2007.

Sri Lanka's police admitted Tuesday that its own security personnel have been involved in

kidnappings for ransom and vowed to crack down on mounting abductions and killings of

civilians. Police Inspector General Victor Perera said a "large number" of police officers and

troops had been arrested on charges of abduction and extortion.'

The former Inspector General of Police who retired in 2006 also pointed out the criminal

elements within the policing system.

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While the IGP, referring to the Auditor General's latest report on the

PoliceDepartment, is quoted as saying"...that corrupt officers were liable to be blacklisted,

taking into account the corruption and fraud cases pending against them."In the same article

he went on to say:"One of 'the shocking revelations highlighted in the AG's report was

where certain senior officers had swindled thousands of rupees in the police cash reward

scheme. Cash rewards of Rs. 1,500 were regularly paid to individuals or groups of police

officers for outstanding service in the field but reportedly, the audit report highlighted

occasions where the figures were altered to read Rs. 15,000."

And the IGP went on to remark that:

"...the audit report on individual police stations were so serious that if action was to be

taken, then most officers would be liable to be sacked."'

In the aftermath of the assassination of the High Court judge, Arnbepitiya, J, by a drug lord,

there was much public criticism about high ranking police officers being linked with drug

dealers and underworld figures.' However, perhaps it was the assassination of Inspector of

Police (IP) Douglas Nimal and his wife that brought the most acute criticism against the

police connivance with drug dealers. IP Douglas Nimal who was investigating several drug

related crimes was arrested on false charges and later released by the Attorney General. He

complained that some persons, including high ranking police officers, had implicated him in

order to obstruct his investigations. He was murdered shortly after his release while

traveling to pursue his complaints.

Dealing with the internal situation of the serious involvement of police officers in crime

should be one of the primary aims of any police reform. A reform that leaves out this aspect

is very likely to receive very little public attention, support or credibility. Perhaps the

example of Hong Kong where a similar situation was successfully addressed through an

agency outside 'the policing system itself, the Independent Commission Against Corruption

(ICAC) should be seriously studied.In recent times there is a widespread complaint that this

supervision often does not take place.

To reestablish command responsibility within the polic e hierarchy

One of the factors that undermines the command structure of the police was the involvement

of the police in gross human rights abuses during the periods when emergency laws and anti

terrorism laws prevailed. In the post independence period, in the early decades such situations

were few and sometimes the officers who engaged in such acts were disciplined. However,

when various insurgencies broke in police officers together with military officers were used

to eliminate insurgents which meant that they were allowed to abduct persons, keep people in

illegal detention, to torture them and even to kill them and dispose of their bodies. The

generally estimated number of such killings at the hands of the police and the military in

1971 when a minor rebellion lead by a small group of persons was crushed ferociously by the

Sri Lankan government is around ten thousand. No official inquiries have been held into this

event. In the second phase of a rebellion by the same group, the JVP between 1987 and 1991

an official figure of around thirty thousand persons disappeared mostly in the south.

Commissions were appointed to inquire into the periods in which disappearances were

described as abductions followed by assassinations and the disposal of the bodies. These

were also done by the police and the military personnel aided by paramilitary groups.

The loss of command responsibility has been discussed from many points of view. One

common point of reference is the politicization of the police by which is meant the

politicians playing a direct role in the command responsibilities of the organisation. The

debate on the 17" Amendment to the Constitution mentioned above was entirely on this

theme. Political influence over the police is perceived to have extended to all aspects of the

administration and often it is alleged that it also influences criminal investigations. The

influence on the administration is on the selection of persons by way of recruitment as well

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as promotions purely on the basis of connections to individual politicians or a political

party.

This also often affects transfers where one of the common fears is people being transferred

to far away places or conflict zones as punishments for non-compliance with the demands of

political elements.

From the point of view of maintaining command this meant a tremendous lowering of

standards and the loss of internal guidelines for the maintenance of hierarchical relationships

and codes of conduct. These periods have also destroyed the morale of the law enforcement

agency.

The interference into investigations is that either due to direct interference or indirect forms

of influence statements are not recorded or investigations are not proceeded with. There are

instances when in the midst of sensitive investigations the investigating officers are

transferred from their positions. Over a period of time many officers also learn "to read what

will be approved and not approved by their political masters." This behaviour can be so

ingrained that they will avoid some investigations altogether, for example into cases such as

extrajudicial killings, abductions, disappearances and the like.

The establishment of a credible system of criminal investigations

One of the most commonly expressed criticisms regarding policing in Sri Lanka by persons

from within the system itself, by local and internal critics including some UN agencies is

that in recent years the Sri Lankan police have not resolved any of the major crimes that

have taken place in the country.

Due to political interference often subordinate officers can become even more powerful that

their superior officers. On the other hand when subordinate officers perceived that their

superior officers behave in a manner to unduly cooperate with politicians the moral authority

that such officers have is also lost. The instances are many when politicians deliberately

undermine the high ranking officers in a way to get them to toe the line.

These crimes includes massacres such as the extrajudicial killings of the 17 aide workers in

Muttur; killings by the military as well as insurgent groups (LTTE and other armed groups

opposed to the LITE); killings of journalists and other activists including human rights

activists; large scale abductions and disappearances 'throughout the country including in the

capital Colombo. There are also of allegations about large scale corruption.

Under the Department Orders the specific duties of supervision are assigned to superior

officers. An officer in charge at a police station has very specific duties regarding all the

officers linked to a police station. An Assistant Superintendent of Police has duties to attend

all police stations regularly at short intervals to read all the books maintained at the station as

well as to be personally present at the crime scene in the event of investigations into serious

crimes, were some of the requirements prescribed in the Departmental Orders.

Measures to ensure police attendance in courts and compliance with court orders One of the revealing factors about the nature of the policing system in Sri Lanka is a finding

by the same committee which submitted its final report in April 2004 and identified the failure

of the police to comply with court orders to attend court as one of the major reasons for the

delays in courts. The committee made the following recommendation:

The Committee makes the following additional recommendations pertaining to the Police in

the context of advancing best practice:

a) Compulsory attendance: The Committee recognises the need to

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introduce administrative measures requiring Police Officers to attend Court on a compulsory

basis, in view of the frequency with which Police Officers obtain leave and abstaining from

Court sighting inappropriate grounds, which has been observed to result in unnecessary

disruption of Court proceedings in the recent past.

In this regard the Committee recommends that the Ministry of Justice advise the Judicial

Service Commission ("JSC)) and the judges Institute to educate Judicial Officers on the

necessity to take prompt and appropriate action against Police Officers who default on

appearances on inappropriate grounds.'

The recognition of this factor is significant in that it shows a breakdown of the link between

the courts and the police. Under the present circumstances it is difficult for the magistrates to

give the necessary orders to the police relating to investigations and the matters relating to the

basic rights of citizens. This breakdown may be traced back to times of the beginning of the

insurgencies in 1971. Ever since the police have used the excuse of having to attend to other

duties such as the security functions or for providing security for politicians as matters that

need to be given higher consideration than attendance in court. The police hierarchy has done

very little to correct this situation despite of a government appointed committee having

recognized this as one of the fundamental aspects affecting the administration of justice.

The establishment of a proper system of disciplinary control within the police and the

establishment of a credible public complaints procedure It is also admitted that the disciplinary process within the police is quite primitive and the

safeguards for complainants is very limited. The National Police Commission has itself

pointed out that despite of large numbers of complaints received against police officers the

number actions taken against them are very few. The 17th Amendment to the Constitution

itself recognized the need for the establishment of a public complaint procedure. The article

155G requires that such procedure should be established. In January 2007 by a Gazzetted

notification the National Police Commission announced such a procedure. However, still the

system of the conduct of investigations has not been changed.

The problem of police discipline is linked to the more fundamental problems of a

dysfunctional system and cannot be dealt with in isolation purely by instructions to improve

discipline.

The conditions needed for police reform A question that has been raised by many persons during the course of the last ten years of

the Asian Human Rights Commission's study on Sri Lankan policing is that whether a

system such, as the one existing in Sri Lanka can be reformed at all. Such concerns are

expressed by senior criminal lawyers, judges and other intellectuals including some

policemen themselves. When speaking privately most policemen admit that there is

something gravely wrong with the system and that there is no serious discourse at all about

putting this right.

All these conversations remind us of the great fall of Humpty Dumpty that not all the king's

men and all of the king's horses could not put Humpty Dumpty together again.

Therefore discussions about police reform should concentrate more on the factors that

contribute to making systems dysfunctional rather than minor aspects of reforms such as the

introduction of forensic science and the like.

The need for a change discourse on police reforms

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The type of crisis that the Sri Lankan policing system faces is a part of a larger political and

societal crisis. The salient question is as to what type of policing the state as well as civil

society wants to have. So long as the state fears the development of an efficient policing

system as a threat to the way the state exists in the country at the moment the implicit answer

to that question is that the state has allowed the system to become dysfunctional. An efficient

policing system will threaten the exiting pattern of misrule abuse of power and corruption.

As long as the state and society cannot arrive at an agreement to eliminate these factors the

talk of police reform will remain of little practical value. The realo problmes are the isseuse

of the nature of the state and the rile that the policinggsystem has to play within such a

system.

It is respectfully submitted that mere discussion on the introduction of forensic science or the

improvement of training and the improvement of discipline of the police will contribute little

to the understanding of the magnitude of the problem or the finding of solutios.

A regional and international discourse on the dysfuncntional policng system, the causes of

such dysfucntionalism and the overall approached to deal with it will contribute more

tosolving not only the problems of policing byt also of some of the basic problems of the rule

of law and democracy. The experiment made by the Hong Kong with the Independent

Commission against Corruption in 1974 is a relevant experience in studying a more

fundemnetal type of police reform that while reforming th epolciing system also contributes

to overcome some fo the basic problems affecting the political sysem wihin a country.

1.3 Justice System as a Threat to Democracy and the Rule of Law

IN THIS ARTICLE, the justice system refers to the police, the prosecution (Attorney Generals Department), and the judicial institutions, as separate entities and as a collective in their interactions with each other.

That these institutions suffered a great set back due to the operation of 1972 and 1978

Constitutions is unanimously acknowledged. The latest Constitutional Amendment, 19 A, is

an attempt to address some aspects of this impasse by trying to depoliticise the

appointments, promotions, transfers, and dismissals of officers in these institutions.

However, there are many other matters that are ailing the justice system, for which the 19 A

Amendment cannot provide answers.

For example, take the most important problem of Sri Lankas justice system: extreme delays in the delivery of services by each of these institutions. These delays result in the delivering

of negative services instead of positive ones. Thus, the system contributes to creating

injustices rather than justice.

Without resolving the problem of undue delay, no other efforts can remove the negative

impact of the justice system. However, everyone seems to consider this as a problem that is

impossible to undo. Delays will always be there, seems to the unwritten rule underlying Sri Lankas justice system. Mere verbal statements condemning delays, often made in response to public criticism, are purely ritualistic in nature and are not meant to be taken

seriously.

Justice System remains within the primitive colonial mode

In the outside world, ideas of policing, prosecution, and judicial interventions, particularly in

terms of criminal justice, have undergone enormous changes. The driving force of change

has been the absorption of modern science and technology into justice functions.

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A most significant change has been the manner in which evidence is gathered by the use of

science and technology. From this point of view, the Sri Lankan system still remains in the

bullock cart age.

The manner in which untrained policemen beat up suspects, day in day out, in all police

station in Sri Lanka, with the view to collect oral evidence, and the way prosecutors and

judges turn a blind eye to this obsolete and inhumane practice, is an adequate demonstration

of the primitive nature of our entire system of criminal justice.

The result is the increase in crime across society and the spread of vigilante justice. The

justice system has thus become a major cause for the demoralization of the people.

Murderers, rapists, money swindlers, and other criminals, are quite happy and grateful to the

justice system. The system is also good for the bad politicians.

The bad aspects of the system could constitute a litany. There is no need to reiterate the list,

as everyone, including officials in the three branches of justice are fully aware of them. In

fact, there is no one who says anything good about this system any more. Someone wrote

recently that this is a jack ass system.

Mr. Eran Wickramaratne, currently Deputy Minister of High Ways and Investment

Promotion, made the following observations last month during an interview with AHRC

TV:

Going to the broader issue of the average person who goes into police station, the police then have to resolve some issues. And, historically, the police have been underfunded, and

have not been properly remunerated. Thats true of public service generally, including the police. And the investigators are even less motivated. There is the whole issue of lack of

training, because there is a lack of investment in training, a lack of investment in

technology, in solving crimes and so forth. They would then resolve to means, which police

forces in poorly funded situations all over to world resort to: try to solve crime by

fabricating some chargearresting the people who may or may not to be connected to the crimeand often using physical force and torture to get confessions. Now this has been documented for a period of time in Sri Lanka as a problem. It has been documented in the

rest of the region, and this is something we need to change. While the immediate focus is on

big issues of corruption, I think that this problem needs to be sorted once and for all.

This culture of treating people using torture or even psychological torture should come to a

stop here. In a civilized society, every human being has dignity, every human being should

be treated equally irrespective of their social background, irrespective of the educational

status, irrespective their wealth, irrespective of whether they have political powers or not.

Every individual must be that equal before the law. Thats the idea. Thats the goal, the direction that we should be travelling in. To do that, I dont think there is one method or one solution. The law is one area, the budget and funding another major area. Earlier, I could

give it as a suggestion; now I am part of government. Therefore I will certainly keep

pressing for investment not just only for the police, but also for the judiciary process.

Now, let us consider the way forward for the Sri Lankan justice system.

Three critical steps to create a modern justice system:

1) Education and training of all stakeholders, police investigators, prosecutors, and judges

on modern scientific methods of evidence collection and provision of technologies required

for this purpose. This way, modern scientific outlook can be engraved into everyones minds. This can be done in quite a short time, with the assistance of a few foreign experts if

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they are thought necessary. This will reduce costs, by cutting down heavy costs spent on

unskilled labour at all levels. This can be made a permanent factor by changing legal

education in all law faculties and law colleges, as well as in police and judicial training

institutes.

2) Some legal and procedural changes to remove existing practices that are primitive and

obsolete, such as the use of torture and the reliance entirely on oral evidence.

3) Basis day to hearings in criminal trials. This way a trial can usually be completed within a

week. On some instances it may take a few days more.

In short, what is needed is to introduce the modern legal imagination and the intellect to Sri

Lanka by taking a few practical steps and allocating the necessary funds. Such an

investment will pay back a thousand fold, both in the areas of economic development and

social development, thus providing a solid base for sustainable democracy and the rule of

law. It will also remove the widespread basis day to day demoralization among populations

and instead implant pride about their functioning institutions of justice. Above all, women

will benefit; they will finally be able to move about freely and without fear.

Completion of a criminal trial within a year within reach

In countries where modern justice systems are established, completion of a criminal trial

within a year is now the rule. In Sri Lanka, when victims of crimes are strong enough not to

discontinue their participation, a trial can go on even after 14 years.

The tactic of criminals that face victims who refuse to abandon participation is to get as

many postponements as possible. Often, they do this on legal advice. When examining

reasons for postponements, we find many instances where the lawyer for the accused is

absent or is seeking a date on personal grounds. There are also references to judges being

absent.

One of the terrible consequences of a delayed trial is that several judges hear parts of the

same case, and the last one that writes the judgement hears only very little of the evidence or

nothing at all. As a result, judges make errors about factual matters. In one case, the judge

wrote that although the complainant says that the accused policemen hit him on the chin

with his pistol, there is no evidence of any such injury, when, in fact, the JMOs report clearly mentions the injury. Sometimes retrials are ordered by the court of appeal due to

such errors by the trial judge, which means the whole process begins once again after 12 to

14 or more years.

If the few steps suggested in this article are followed, completion of a criminal trial within a

year will be a reality in Sri Lanka soon.

Advantages of completing a criminal trial into serious crimes within a year

Some of the advantages of completing a criminal trial within a year are as follows:

1) Bringing criminal justice from the arena of the absurd where it operates presently to the area of the rational.

2) Bringing a sense of meaning and social relevance to the work of all stakeholders:

complainants, accused, police investigators, judges, and the community at large.

3) Creating the strongest deterrence against crime by providing sure and speedy punishment

a far superior deterrent in comparison to harsh punishment. 4) Ending abusive practices arising out of delay in adjudication, currently widespread.

5) Ushering radical limitations to corruption.

6) Restoring and enhancing faith in the justice process and in reason.

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7) Creating greater social stability and social mobility.

1.4 UNHCR Finds Fault with the Police, the Forensic Pathologist, The Attorney General

and the Supreme Court

A DETERMINATION issued by the United Nations Human Rights Committee on 1 April 2015, reveals extraordinary failures on the part of Sri Lankan State agencies the police, the forensic pathologist, the Attorney General, and the Supreme Court regarding a custodial death that took place at the Moragahahena Police Station on 26 July 2003. The following

Committee Members participated in the examination of the case in question: Yadh Ben

Achour, Lazhari Bouzid, Sarah Cleveland, Olivier de Frouville, Yuji Iwasawa, Ivana Jelic,

Duncan Muhumuza Laki, Photini Pazartis, Mauro Politi, Sir Nigel Rodley, Victor Manuel

Rodriguez-Rescia, Fabian Omar Salvioli, Dheerujlall B. Seetulsingh, Anja Seibert-Fohr,

Yuval Shany, Konstantine Vardzelashvili, and Margo Waterval.

The facts of the case are that Sunil Hemachandra (Sunil) was once a healthy and a literate

man with no criminal record. He was a daily paid labourer, mostly engaged in tapping of

rubber and climbing trees for plucking coconuts.

His misfortunes began, ironically, when he won a lottery ticket of a little over 3 million

rupees (approximately USD $25,000). Through the lottery agent, the Moragahahena police

learned about Sunil having won the lottery; the Officer-in-Charge of the Moragahahena

Police Station sent a police officer with the message that Sunil should arrive at the Station,

along with his ticket, and stay there for his own safety. Sunil did not comply this request.

Instead, he went with his mother and aunt, en-cashed his winning ticket, and immediately

deposited it in his aunts bank account. Thereafter, he bought a van for 1.2 million rupees, a three-wheeler for one of his nieces, and gave 5,000 rupees to his nephew as a gift.

A few weeks later, a team of police officers from the Moragahahena Police Station came

looking for Sunil; they inquired from his aunt whether Sunil had spent his lottery money.

One of the police officers warned, his [Sunils] happiness would not last long. The police officers left a message for Sunil to report to the Moragahahena Police Station.

On the same day, Sunil, accompanied by an acquaintance, Chanaka, and along with the son

of the lottery agent, Lionel, went to the police station. At the Police Station, one of the

police officers (a Sub Inspector) requested Sunil to pay money as support. Sunil had replied that the money was not with him and declined to pay. The same police officer then

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insisted on the payment of 25,000 Rupees to cover the expenses of a procession of the Vidyaratne Temple in Horana, to which Sunil agreed.

On 22 July 2003, five police officers from the same police station arrived in a vehicle at

Sunils aunts house and, seeing him asleep in his room, identified him as being the one who won the lottery and then they proceeded to beat him, which included hitting him on his head. The police officers proceeded to arrest Sunil and Chanaka and continued beating

Sunil at the time of the arrest and during the ride in the police jeep to the police station,

when he was hit on his head and in his abdomen. Chanaka was hit in the face, several times,

when he asked the officers to stop beating Sunil.

Sunil and Chanaka were taken to the Moragahahena Police Station and placed in a small cell

with several other detainees. Next morning, Chanaka found that Sunil was visibly unwell

and was bleeding from his nose and his mouth, and was not able to stand. Chanaka alerted

the police officers of Sunils critical health condition. However, the officers merely asked Chanaka to take Sunil to the backyard and to wipe the blood off his face. The bleeding

however, continued uninterrupted from his nose and mouth and Sunil began vomiting blood

clots. One of the police officers directed Chanaka to give Sunil an iron rod to hold, which is

done in the case of epileptic attacks.

The same morning, Sunils aunt came to the police station and found Sunil lying on the floor of the cell bleeding from his nose and mouth. She too alerted the police about Sunils serious condition, but was chased away by the police.

It was only later during the day that Sunil was finally taken to the Horana Base-Hospital in a

police vehicle. Sunils aunt visited him at the Police Station and was told by Sunil that he had been brutally assaulted by the officers. She found him to be in severe pain and his face

was red and swollen.

Later, on the same day, two police officers from the same station arrived at the hospital to

record Sunils statement. But he was only able to mention his name. However, the police officer wrote something on two lists of paper while talking to the other. The officers then

obtained two impressions of Sunils left thumb, in lieu of his signature, although Sunil was capable of signing his name.

The next day Sunils family learned that he had been transferred to the National Hospital in Colombo, where he had undergone brain surgery. On 26 July 2003, staff at the National

Hospital informed his aunt that Sunil passed away earlier that day.

Three days before his death, while Sunil was in hospital, Sunils aunt went to the office of the Assistant Superintendent of Police in Horana, and attempted to complain of Sunils arrest and torture. But her complaint was not recorded by the Superintendent of the Police. It

was only on 26 July 2003, that the Assistant Superintendent of the police in Horana recorded

a statement from the aunt and Chanaka, who was released from police custody.

Sunils aunt also made a complaint to the National Human Rights Commission (NHRC), and with the help of a human rights organisation Janasansadaya lodged a Fundamental Rights Petition before the Supreme Court of Sri Lanka, in which a number of officials and

institutions were cited as respondents.

The aunts complaint to the NHRC remained unanswered till August 2008, when the NHRC stated that as a Fundamental rights case had been filed before the Supreme Court, the NHRC

will not make any inquiry while the case is pending. Since then, Sunils family has not heard from the NHRC.

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The Additional Magistrate of the Colombo Chief Magistrates Court opened an inquiry into Sunil Hemachandras death and heard the statements of Sunils aunt and Chanaka. The Additional Magistrate noted that in the police report from Moragahahena Police Station

there was no entry whatsoever, revealing the reason for which Sunil has been arrested by the police. The Magistrate also noted after observing the victims body in the mortuary, that among other injuries he noted an injury of about one inch slightly above the buttocks on the left side of the back.

A few days later, a Consultant Judicial Medical Officer (JMO) from Colombo conducted a

post mortem examination. His report documented ten pre-mortal injuries, four contusions,

four aberrations, one peri-orbital haematoma (black eyes) around the left eye and one surgical incision. However, the JMO made no record of the injury on the left side of the

back observed by the Additional Magistrate. The JMO identified the cause of Sunils death as acute subdural haemorrhage following a head injury caused by blunt trauma. The report identified four possible origins of fatal haemorrhage: a heavy blow on the back of the victim

with a weapon or a kick with boots; a fall due to being pushed; accidental fall; or a fit due to

alcohol withdrawal or epilepsy. Strangely, the report concluded that it was possible that the cause of death was a fall following alcohol withdrawal, a finding seemly derived solely from

the discovery of an enlarged and fatigued liver in the body of the deceased.

On 8 August 2003, the Magistrate of Horana directed the Senior Superintendent of the

Panadura Police to investigate and produce the suspects before the court as the

circumstances surrounding the victims death seemed suspicious.

However, on 29 August 2004, the Attorney General decided that no charge could be filed in

connection with Sunil Hemachandras death as there was no evidence of any assault on the victim. On the basis of this reference by the Attorney General, the Magistrate removed the

case from the roll.

Regarding the authors petition to the Supreme Court, which was made in September 2003, a decision was made on 6 August 2010. The Supreme Court dismissed the application based

on the conclusion that the fall being due to a fit following alcohol withdrawal was highly possible.

Concluding findings of the UNHRC

The UN Human Rights Committee considered Sunils case on the basis of information placed before the Committee. It should be noted that Sri Lanka as a State party was under

obligation to reply to complaints placed by the UNHRC under the Optional Protocol to the

International Covenant on Civil and Political Rights. However, despite requests having been

made to the state party, twice, by the UNHRC, the State party made no reply to the

allegations made in this Communication.

The UNHRC arrived at the following findings:

Arbitrary deprivation of life

Regarding the authors claims under Article 6, in relation to arbitrary deprivation of Sunil Hemachandras life, the Committee recalled its jurisprudence, in which it determined that by arresting and detaining individuals, the State party takes the responsibility to care for their

life, and that a death of any type in custody, should be regarded as prima facie a summary

and arbitrary execution. Consequently there should be a thorough, prompt, and an impartial investigation to confirm or rebut this presumption, especially when complaints by relatives

or other reliable reports suggest unnatural death. Members of the Moragahahena Police Station arrested Sunil Hemachandra on 22nd July 2003 at his place of residence. Four days

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later, on 26th July 2003, he died in the National Hospital in Colombo, as a direct result of an

acute subdural hemorrhage following a head injury cause by blunt trauma. Although the victim was bleeding uninterruptedly, i.e. he was in a visibly critical medical condition the

day after his arrest and placement in detention (23rd July 2003), the police failed to seek

medical assistance for at least three hours.

State partys investigation into suspicious circumstances of the death of Sunil inadequate

The Committee has recalled that criminal investigation and consequential prosecution are

necessary remedies for violations of human rights, such as those protected by Article 6 and 7

of the Covenant. In this case, the Committee has observed that all investigative steps

undertaken by the State party were carried out by members of the Moragahahena Police

Station, i.e. the same police officers which arrested and detained Sunil Hemachandra; that

the investigation ordered on 8 August 2003 by the Magistrate of Horana was closed, further

to the Attorney Generals decision of 29th April 2004 not to pursue charges for assault; that it took the Supreme Court seven years to rule on the Fundamental Rights Petition filed by

the author; that, in its decision on 6 August 2010, the Supreme Court discarded the

possibility of the victims custodial death as a result of torture, without ordering any independent investigation to ascertain the facts and identify possible perpetrators: no police

officer was identified as a suspect and interrogated, let alone suspended or brought to

justice. In the absence of any explanation by the State party, the Committee has concluded

that the State partys investigations into the suspicious circumstances of the death of Sunil Hemachandra are inadequate. The Committee has concluded that the State partys authorities, either by action or omission, were responsible for not taking adequate measures

to protect Sunil Hemachandras life, and to properly investigate his death and take appropriate action against those found responsible, in breach of Article 6 paragraph 1, read

alone, and in conjunction with Article 2 paragraph 3 of the Covenant.

Torture and failure to provide immediate medical attention

The UNHRC has concluded that severe torture had been committed at the Moragahahena

Police Station and that the State party has also failed to provide immediate medical attention

even after the serious condition of the detainee was brought to their notice.

Illegal arrest

The UNHRC concluded that the arrest and detention of Sunil Hemachandra was also illegal

and that the State party failed also to inform the reason for his arrest.

UNHRC Recommendation to be fulfilled by the Government of Sri Lanka within 180

days

The UNHRC has recommended that Sri Lanka as a State party should undertake a prompt,

thorough, and independent investigation into the facts, ensuring that the perpetrators are

brought to justice, and ensuring reparation, including payment of adequate compensation

and public apology to the family. The State party should also take necessary measures to

ensure that such violations should not recur in the future. The State party had been requested

to provide information about measures taken to give effect to the Committees views within 180 days. The State party is also requested to publish the Committees views and to have them translated into the official language of the State party and be widely circulated.

Will the new government act differently from the Mahinda Rajapaksa government?

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The Mahinda Rajapaksa government completely ignored all the views and recommendations

of the UNHRC delivered during the term of its office. The question now is whether the new

government headed by President Maithripala Sirisena who has promised to discontinue with the way the previous government conducted itself in relation to international affairs

including relationships with the United Nations will act differently with regard to the findings and recommendations of the UNHRC in Sunil Hemachandras case.

President Maithripala Sirisena has made good governance the major slogan of his

government. The UNHRC observations and recommendation in this case expose the

extreme deficiencies relating to good governance in Sri Lanka; of particular importance are

the failures mentioned by the UNHRC regarding the failure to conduct impartial inquiries

into custodial deaths. Also of importance is the UNHRC criticism of the Attorney Generals interventions into criminal cases in order to stop the investigations, as it happened in Sunils case.

What is also unique in this case, is that the UNHRC has made observations regarding the

failures of the Supreme Court of Sri Lanka to call for a fresh inquiry, whereby the Court

could have intervened to defeat the police scheme to deny justice by subverting inquiries

into a custodial death.

1.5 Abysmal lawlessness and the zero status of citizens

Introduction: The distinction between genuine and counterfeit actions for justice

Leo Tolstoy once wrote that the art of his time in Europe was counterfeit. In counterfeit art,

the artist believes himself to be creating a work of art but is in fact only creating

impressions of art. These impressions are derived from an understanding of some external

qualities of art, which the artist tries to recreate. The work produced in this manner appears

to have the external characteristics of genuine art. By imitation, artwork was mass-

produced to suit the appetites of people willing to pay for it.

The analogy is relevant for the protection and the promotion of human rights. Do activities

really address the problems towards which they are directed? Do they really go into the

deeper qualities or are they merely restricted to the superficialities? This depends upon the

extent to which the real problems are addressed through mature use of judgment. It

depends on the extent to which the solutions are real ones, not mere imitations of other

works.

In counterfeit human rights work the actor begins on the basis of some training or some

understanding gained from observation or reading on the general nature of some problems

and assumes that there is no need to develop specific knowledge about the specific problems

that they may encounter in real life, in the particular circumstances in which they have to

work.

It is possible for someone to gain some knowledge of what other people have done to resolve

some problems without understanding the particular reasons as to why those things were done

in those other circumstances. The person might get some impressions about those activities and

then try to replicate them. Externally, the replicated activities will have some of the qualities of

the original.

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They may have the appearance of genuine human rights efforts, but will in fact be mere

counterfeits.

In a particular country, disappearances, extrajudicial killings, torture, illegal arrest and

detention may have taken place on a large scale. Well-intentioned and highly motivated

citizens may demand that impartial and competent bodies investigate and prosecute

perpetrators. If these demands are made within a country where criminal justice institutions

genuinely exist, then there will be results sooner or later. But if these institutions do not

exist at all or are completely dysfunctional, however long demands for justice are made

nothing will happen, because there are no institutional possibilities. Even with regime

change, institutional capacity will not be automatic.

Under such circumstances, the honest citizen who engages in work with the best of

intentions can make demands for many years but not attain results. The citizen may think

that he or she has done as much as possible, on the basis of impressions gained from others

who have dealt with similar problems in other circumstances. Both in terms of attempts and

in terms of failure, the citizens honest activity remains a mere imitation.

Where institutional impediments to justice exist, it is the task of anyone who desires

justice to struggle for the creation of or improvements to its institutions. Particular

methods and strategies need to be developed with comprehensive knowledge of the local

context. Lessons learned or impressions gathered from others can be useful, but are no

substitute for knowledge of the actual circumstances.

For some years, the Asian Legal Resource Centre (ALRC) and its sister organization the

Asian Human Rights Commission (AHRC) have through article 2 and other

publications attempted to bring this point home very firmly with regards to the human

rights situation in Sri Lanka. Just a few of the major reports and other publications that it

has produced towards this end include: Sri Lanka: Disappearances and the collapse of

the police system,

From these publications and the work that it has conducted with partners in the country over

the last 15 years, the centre has concluded that what exists in Sri Lanka today is a situation of

abysmal lawlessness, resulting in the zero status of citizens. The word abysmal is here used

in its ordinary meaning to mean limitless, bottomless, immeasurably bad and wretched to the

point of despair. Lawlessness of this sort differs from simple illegality or disregard for law,

which to differing degrees can happen anywhere. Lawlessness is abysmal when law ceases to

be a reference. What would normally be crime ceases to be thought of as crime and

lawlessness becomes routine. This kind of abysmal lawlessness manifests itself in arrests,

detentions, and trials that require no legal justification.

Under these circumstances, the idea of legal remedy or redress also ceases to have any

meaning. All legal systems are built around the idea of legal redress. Laws and procedures

are meant to make redress possible, to one degree or another. Abysmal lawlessness implies a

complete loss of the linkage between redress and whatever may be called law.

The situation of abysmal lawlessness will not be changed through the victory over the

Liberation Tigers of Tamil Eelam (LTTE) that the military finally achieved this year. The

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suppressing of violence does not in itself guarantee that human rights will be better

protected. In fact, the military victory can easily be utilized to further strengthen

authoritarianism and to suppress democracy and the rule of law even more.

With this perspective, this essay is organized according to the following themes:

1. The lost meaning of legality: how the notion of legality itself has been defeated,

accompanying the collapse of institutions for justice and leading to the zero status of

citizens to which the title alludes; the loss is associated with the suspending of criminal

procedure law through antiterrorism and emergency laws.

2. The predominance of the security apparatus: with the decades of conflict and final

victory over armed groups in the country, the security apparatus is now both the paramount

and most comprehensive agency for political and social control in Sri Lanka; it is unbound

from conventional rules that once at least delimited its sphere of activity and extent of its

authority thanks to the use of emergency and antiterrorism laws; it can act with unlimited

secrecy and without challenge, on the pretext of national security.

3. The disappearance of truth through propaganda: with the first two elements of the

state in Sri Lanka, the government propaganda machinery is no longer bound by any

rules of truth or falsehood; even the distinction between the two is completely lost.

4. The superman controller: a constitutional and political arrangement that allows a single

person to manipulate the three elements above as he or she wishes; the superman controller

was created through the political and legal vacuum of the 1978

Constitution, in which the rule of law could not survive, but has over time accumulated

even greater powers through the combination and manipulation of the three elements.

5. Destroyed public institutions: the institutions for the administration of justice are

completely destroyed through the combination of the above four elements; this is the feature

of life in Sri Lanka today on which a great deal of the earlier work of the ALRC has turned,

so as to document and demonstrate this fact and in order to arrive at the understanding of the

present situation in terms of the four elements; there is nothing sacrosanct or predetermined

about any institutional practices now, and the citizen who goes before public institutions

knows not what to expect.

6. The zero status of citizens: Sri Lankas citizenry, while believing that nothing has

significantly changed, is doomed by the four elements and the consequences of its destroyed

institutions; due to conflict on the island, at present the hundreds of thousands of persons

detained in camps outside the framework of law and without legal status are suffering the

greatest consequences of this zero status, but in fact it is a feature of the situation in the country

that is common to all citizens to one degree or another.

The material used for this article has been variously drawn and adapted from the

ALRCs and AHRCs statements and other appeals, the authors articles on online

websites, including the Sri Lanka Guardian and Ground Views, and some outside

sources, which are cited in the text.

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CHAPTER 2 - The Need for Police Reforms

2.1 A practical illustration of the actual state of the Sri Lankan policing service as

illustrated by the recent Embilipitiya incidents and the challenge to the drafters of the new

constitution on the need to address this issue; A Statement issued by the Asian Human Rights

Commission entitled the Constitution making and brutal police murder at Embilipitiya;

The Constitution making and brutal police murder at Embilipitiya

The Government has announced another attempt at constitution making in Sri Lanka which,

this time is to begin, with the hope to complete the process, by the end of this year. A

resolution to this effect has already been introduced in the Parliament and a Drafting

Committee has been named. A valid question that begets asking is; what, does a constitution

making in Sri Lanka imply?

Some reflections of the alleged brutal murder in Embilipitiya, may provide some answers to

this very important question about the purpose and direction of constitution making in Sri

Lanka.

The broad details of the incident as described in many reports, including many photographs

and videos is quite simple. A party, was being held, at a residence in the Embilipitiya town

and many people were attending this private celebration. During this party, two un-invited

guests who were two policemen - arrived at the house to the surprise of all guests and the residents. They were there not for any particular police duty, but to ask for Arrack (a local

liquor), for their own consumption. As this request was not heeded to by the owners and

residents there began a quarrel which quickly turned aggressive. The two policemen had

beaten up several people at the house, in particular a young man, Sumith Prasanna

Jayawardana who was the owner of the house. The policemen had then called their

colleagues at the local police station as reinforcements, and soon thereafter a large group of

policemen had also arrived and they had severely beaten the people attending the party,

including women. The people who were at the event, have later spoken to the media

including London based Sinhala BBC service, and had given accounts of the cruel manner

in which they were treated by the officers attached to the Embilipitiya police. As a result of

the police beating, Sumith Prasanna Jayawardana, a young man, was killed. This naturally

provoked reaction from the people of Embilipitiya, who in large numbers began to gather

and also put up black flags in protest of the police action. They also signed a petition,

addressed to the Government to complain about this action. Meanwhile, police sought the

intervention of the Magistrate in the area, and later served the pregnant widow, of the

deceased young man with a notice ordering her to ensure that there will be no protest against

the police and in particular forbidding anyone to carry a coffin, while demonstrating. As the

tensions were building large numbers of police were called to the streets including, as

reports stated, around 500 STF personnel (Special Task Force), in order to prevent a mass

protest by the people.

This incident is the thus far the first killing to take place, due to police brutality in 2016.

Going by the experiences of the previous years, this will certainly not be the last.

A Constitution is the first law or the paramount law of a country, that lays down the rules

that the government, all its institutions and the people should abide by, if they are to achieve

the great goals that the nation has set out to achieve, such as development, prosperity, peace

and harmony and orderly behaviour in every aspect of the nations life. The simple question that would arise is ask then, as to whether it would be possible for the new constitution, to

provide for a legal arrangement within which, the police in Sri Lanka will cease to act

brutally. Or will it be the case that even after promulgation of the new constitution, the

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police will be allowed to act as brutally as they do now. If later be the case, then the people,

particularly the people of lower income groups in the country will inevitably question, what

good will such a constitution bring about to the people and the nation. Will this constitution

making be another failed attempt as the two previous constitution makings were?

In no country is the maintenance of law and order possible, if the law enforcement agency of

the country, the police itself, does not abide by the law. The Embilipitiya incident and many

other similar incidents, only indicate that the Sri Lankan police do not consider it their duty,

to abide by the law. A commonly held belief seems to be, that the police can break any law

and get away with it.

The Embilipitiya incident confirms this perception. Despite of a brutal murder taking place,

about which there is a large body of evidence, eye witnesses, photographs, videos and the

like, the murders have not yet been arrested. They have only been transferred.

Looking at the scale of indiscipline in the Sri Lanka police, it can be asserted without

hesitation, that the police hierarchy and even they Government fears to take action against

the police. The fear is that the police will retaliate and withdraw cooperation, which in turn

will create even more problems for the Government to tackle.

What use would any constitution be, if this situation is allowed to be continued? Thus a test

for the effectiveness of any new constitution, that promises to restore the rule of law and

good governance, is that it will develop constitutional strategies, to create a law abiding

police force. Given the conditions in Sri Lanka, this will not prove to be an easy task. To

bring about such effective reforms would require considerable discussion with the people

about what has become of their police force, quite openly and frankly. If that cannot happen,

Sri Lanka will continue to be a place of disorder, which is caused mainly by its main law

enforcement agency.

The President and the Prime Minister and even some ministers have spoken eloquently

about the making of the new constitution and how it will make Sri Lanka a prosperous

country. If they are serious about what they are talking, they should look into the state of

policing in Sri Lanka and place before the people a perspective, as to how a policing that has

turned wild, could be tamed and will become an instrument that generates an environment

where law enforcement will become a civilised practice. An uncivilised policing and a good

constitution are incompatible. One would hope that the President and the Prime Minister

will demonstrate their wisdom and capacity to deal with this difficult problem.

It was not so long ago that the National Police Commission and the Human Rights

Commission of Sri Lanka (HRCSL) forthright, condemned the police attack on the NDTA

Students. The HRCSL, also imposed fines on the culprits. However, that does not seem to

have awakened the Inspector General of Police, to take firm action to restore discipline.

Instead, the Police Headquarters have moved the Courts, to challenge the action of the

Human Rights Commission of Sri Lanka. The internal disciplinary process of the police has

broken down to these extents.

The Constitution Drafting Committee, when it starts its work therefore, should seriously

ponder on these questions. If they cannot find a way to create a law abiding police force,

their efforts towards making a new constitution will not bring any good tidings to Sri Lanka.

Drafting of a constitution, is not a matter of engaging in some paperwork. A nice

constitution can be written by anyone, who has an access the text of other good constitutions

in other countries. A really good drafting process of a constitutions involves dealing with

threats to liberty and equality that the people are faced with and deliberating solutions that

should be incorporated into the law so as to overcome these issues. Thus the drafters must

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address the socio political situation of the country and be clear-headed about how to bring an enlightened approach to discipline within the government and amongst the people. If

there is indiscipline in the gov