As Sri Lanka celebrated its 75th anniversary of Independence on 4 February, the general reaction of the people around the country this year was one of despondency, with serious criticisms about the failure of governance in the country.
The need for thinking through some of the more difficult problems relating to the rule of law and human rights has been a long-felt need of all parties concerned over the situation that has been developing in Sri Lanka which has become more complicated due to the current economic collapse, the political crisis, and the serious threat posed to the administration of the justice system in Sri Lanka with the severe undermining of the policing and criminal justice system and the ever increasing abuse of the law for the suppression of the freedoms of assembly, association, and expression, particularly through the abuse of arrest and detention, the denial of the right to a fair trial, and in general, the disregard for the due process of the law.
In a recent judgement, seven judges of the Supreme Court (SC) found that former President of Sri Lanka, incumbent Opposition MP Maithripala Sirisena and a few former high-ranking State officials, including Secretary to the Ministry of Defence Hemasiri Fernando, Inspector General of Police (IGP) Pujith Jayasundara, Chief of National Intelligence retired Deputy Inspector General of Police (DIG) Sisira Mendis, and Head of the State Intelligence Service Senior DIG Nilantha Jayawardena, have failed in their obligations to guarantee security and protection for the people of Sri Lanka, and that this has resulted in one of the most devastating security lapses which killed over 270 persons and injured an even larger number in several bomb blasts directed particularly towards places of worship on the Easter Sunday of 2019.
Observing this situation, the SC noted: “We must express our shock and dismay at the deplorable lack of oversight and inaction that we have seen in the conduct of affairs pertaining to security, law and order, and intelligence. There are glaring examples of a lack of strategic coordination, expertise, and preparedness that need a critical examination regarding the way forward. The failures that eventuated in the Easter Sunday attacks and the concomitant deaths and devastation have left behind an indelible blot on the security apparatus of the country, and this country which is blessed by a multi-cultural and multi-religious polity cannot be left to the vagaries of these follies and made to suffer, leading to violence, fear, apprehension, and uncertainty. These events must recede into oblivion but they remind us starkly of the necessity to effect legislative, structural, and administrative changes.” (SC Fundamental Rights 163/2019).
To fulfil this destiny as envisaged by the SC in Sri Lanka for legislative, administrative, and structural changes, the Government of Sri Lanka (GoSL) and the people will have to find ways if Sri Lanka is to overcome the serious loss of confidence in the international financial markets where the country has been downgraded as it is in a state of default in the payment of its foreign debts. The crisis of governance and the crisis of the economy are thus bound together.
The popular criticism in the country is that no policies or plans have been presented by the Government or other political stakeholders to resolve multiple questions relating to this situation. The general expectation is that things are likely to get worse rather than improve in the coming months.
The country’s present situation may be bewildering, but its collapse into this situation has a long history. Although the country became Independent in 1948 from British rule, this independence was nominal rather than substantial and real. From its colonial status, the country changed to independent status. The administrative and political structures that were created have not developed enough to ensure the protection and welfare of the people within a framework of rational governance. In fact, Sri Lanka has not evolved into a modern State at any time. The structure of governance which prevailed from around the 9th Century Anno Domini (A.D.) to the early part of the 19th Century, before the British took over control of the country in 1815, was based on the strict segregation of the people on the basis of caste. In the majority Sinhala-speaking community, the division was made as a relationship between the Kuleena (meaning those who had power and wealth) and the Kulaheena (meaning those who were powerless and had no dignity). A similar system prevailed under different titles in the Tamil community also. Thus, during this long period of several centuries, there was no idea of people with equal rights and equal opportunities.
The two principles that the caste system stood for were the complete prohibition of social mobility where people were kept prisoners of their own caste groups, with any attempts to improve their living conditions met with extremely serious punishments, while the associated second principle was the imposing of unequal and disproportionate punishments, which meant that the punishment for the simplest transgressions by those considered lower caste could entail the deaths of the person in question and even his or her family along with the destruction of their possessions. Meanwhile, those who belonged to what was considered the high castes would not be punished for much graver crimes committed against underprivileged groups.
These two principles were the pillars on which the Sri Lankan society was organised during this long period. This long-held practice created a habit of mind and social behaviour, which in turn created a kind of “culture” that exists even to date. The introduction of some rationalistic administrative methodologies introduced by the British during their rule superficially made some changes to this situation but was unable to touch the core of the repressive culture which has taken root in the country. In recent decades, even these limited modernisations introduced by the British have been subjected to great erosion. The return to a more repressive society which attempts to displace democracy, the rule of law, and human rights is quite manifest in the present times.
All these factors have contributed to obstructing Sri Lanka’s development of its own State machinery on the basis of the people’s sovereignty although the Constitution itself has recognised that all power in the nation is derived from that principle. Instead of the people’s sovereignty, the absolute power of the Chief Executive has been established through the same Constitution, i.e. the Constitution introduced in 1978. This Constitution is a major stumbling block for the creation of a State mechanism based on the principles of democracy, the rule of law, and human rights. A major task facing the Sri Lankan State and the people is to replace this Constitution with a constitution that asserts the sovereignty of the people through the creation of State mechanisms functioning under the norms and standards of democracy. The security of the people will depend very much on the manner in which this problem is resolved in a positive manner in the immediate future.
A nation can be built only on the basis of solidarity that exists among the people on the grounds of the equality of all the persons living in such a nation. The concept of equality, though recognised formally in the laws, has not been implemented in a manner that could bring about unity in all segments of the society. The poor feel that they are completely alienated within their own society. Even leading politicians themselves recognise that there is a loss of confidence in the Parliament itself due to the chasm between the representatives of the people and the people themselves. However, despite such recognition, there has been no real attempt to resolve this issue and restore confidence in the State.
The result is divisions everywhere on the basis of many factors such as discrimination against the weaker sections of society of all communities in terms of every aspect of life. The psychology of division exists because of caste-based cultural practices which prevent the convergence into a single nation. Discrimination against minorities has also had the same effect and is a source of constant misunderstandings and conflicts, while discrimination against females is also one mode of division in the country. These and other forms of failures to ensure equality among the citizens prevent the emergence of a consensus on all the major issues confronting the country.
One of the most alarming factors at the moment is the most visible weakening of the criminal justice system. There are widespread crimes such as murder, rape, theft and robbery, and above all, the rising of corruption to Himalayan proportions. The criminal investigation capacity and the quality of policing have degenerated to such an extent that even IGP Chandana D. Wickramaratne has admitted the serious nature of this problem. Similarly, the prosecutor’s office functioning under the Attorney General’s Department has also been the subject of constant criticism. The Judiciary itself suffers from extremely chronic delays, creating problems for litigants as well as witnesses to cases. Those who complain of being unable to obtain justice due to multiple causes even go on to say that they have lost confidence in the justice system. As a result of all of these, there is a popular feeling of insecurity arising out of non-governance and misgovernance. Among the younger generations, there is large-scale migration from Sri Lanka due mainly to severe unemployment.
Under these circumstances, it is only natural that there is widespread discontent and protests everywhere. Unfortunately, instead of attempting to openly discuss with the people about their problems, the Government resorts to repression against them. Particularly, the younger generations who have shown a remarkable capacity for peaceful attempts to focus attention on these problems, are being treated harshly via illegal arrests and detention, and harsh attacks on peaceful demonstrators.
In one recent case, even the Magistrate observed that the Police have misused the Prevention of Terrorism (Temporary Provisions) Act law without any justifiable grounds. Additionally, the media has come under severe attacks, in particular those who are engaged in social media networks.
Under these circumstances, the Independence Day reminded everyone that Sri Lanka requires taking urgent actions to begin to address these problems. The only manner through which this could be done is to allow the people to participate in bringing about a nationwide discourse on policies and plans to bring about solutions to economic, political, social, and cultural problems that hinder the progress of the development of the country. It is only the people that think critically who would be able to assist the State to bring about a real “Independence” and strengthen the solidarity of the entire nation on the basis of equality, democratic participation, the rule of law, and human rights. The duty of the State is to create the environment for such a critically thinking population to operate peacefully and constructively at this most crucial hour of the country’s history.
(The writer is the Policy and Programmes Director of the Asian Human Rights Commission.)
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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.