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|¡@|| ROLC-U-4 from 08.12.2005
Sri Lanka: Peace and Democracy without the Rule of Law?
by Sanjeewa Liyanage
People simply understand peace as the absence of war or other hostilities. In many civil strife situations within Asia, this definition of peace finds its relevance and objective. However, for the purpose of the situation discussed in this paper, I would like to consider a much broader definition of peace. This definition is closer to the legal definition of peace, which is, ¡¥a state of security or order within a community provided for by law or custom.¡¦ Such a definition would find relevance concerning the situation in which almost all Sri Lankans are living today, regardless of their geographical location, ethnicity, language or religion. Simply put, the citizens of Sri Lanka have lost the state of security or order provided for by law. People have lost the basic security of the person and the nation has lost internal order. The irony is that state institutions that should be guaranteeing such security and order have become the violators of such peace.
Secondly, democracy simply means ¡¥government by the people.¡¦ I do not intend to enter into a debate on the definition of the word democracy here. However, I would like to highlight what participatory democracy means, an inclusive process where many kinds of consultative decision-making processes are taking place in a democracy. What can be said about Sri Lanka is that it has failed to achieve real participatory democracy. In other words, the democratic process was manipulated by a small segment of the elite in the country in order to maintain their power control over the nation. Thus the people never really governed, but the elite did, in the name of democracy and the people. Sri Lanka inherited a Westminster style of democracy from its former colonial power¡Vthe British, in the late 1940s. However, following the general elections held in 1978, this was changed to a presidential system or a so-called ¡§French model¡¨ where the power was vested in an executive president. Gradually, democratic process became not only manipulated but also utterly corrupt. Once again, state institutions, especially the justice system institutions, failed to guarantee the fairness and the impartiality of the democratic process.
This paper will deal with the collapse of the rule of law and the justice system and institutions in Sri Lanka, which has deprived its people of peace as well as democracy. The following quote from an AHRC statement encapsulates the situation in Sri Lanka well,
¡§There have been numerous attempts to promote democracy all over Asia, largely unsuccessful. Their failure lies in the absence of accompanying strategies to establish or enhance the rule of law. As a result, defective rule of law systems are able to distort and even destroy democratic institutions and practices. An election held without the rule of law, for instance, will merely become a farce legitimising the power of those individuals able to manipulate the process.¡¨
Thus, the rule of law institutions that are mainly in question are the police or disciplinary services, the prosecution and the judiciary. This paper will discuss how a collapse in rule of law institutions in Sri Lanka has created a totally insecure situation for the common people, depriving them of peace and participation in a democratic society, through the use of torture and enforced disappearances.
A brief background
Use of violence by state institutions began a few decades ago in Sri Lanka. Examining the policing system in British colonial times, the Soertsz Commission Report noted how the police force came into disrepute by drastically changing the fundamental role of the police from keeping peace and bringing criminals to justice, to riot control. Thus the militarization of the police in Sri Lanka started early in the 20th Century. Notable changes in policing in post-colonial times have been described in an ALRC report as follows:
¡§[T]he use of torture by the police became common in the early 1970s onwards, when the then governments used extra-judicial ways to suppress a Marxist Sinhala youth rebellion. The police and armed forces were given powers to extra-judicially execute thousands of youths who were suspected of being members of a rebel group. It is estimated that over 10,000 youths were extra-judicially executed and many others were detained and jailed. The State giving extra-judicial powers to institutions such as the police, that are primarily responsible to protect and implement law and order, made them major violators of the law. Furthermore, any measures of accountability were removed and such institutions could prevail with impunity. This laid down the foundations for state-sponsored violence. This provided confidence to the law enforcement agencies to carry out similar activities completely disregarding the rule of law. The ability to act with impunity became a hallmark of law enforcement institutions and they became immune to prosecution as prosecuting institutions such as AG¡¦s department failed to file charges against police the for such violations. The judiciary was also so weakened that it failed to act promptly to protect the rights of people against state policies. What we see here is the gradual deterioration of all of these institutions from the 1970s onwards and the fall towards a complete collapse.¡¨
The beginning of the present crisis in Sri Lanka
One of the key events that lead to the destruction of peace and democracy in Sri Lanka was the creation of the 1978 Constitution. This Constitution, at the time of its promulgation, was even hailed by academics and constitutional experts, as it was styled using the French model, creating an executive president. Although the Constitution guaranteed basic rights, wide powers were vested upon the president of the country, who could suspend these rights under emergency situations. That was exactly what happened all throughout Sri Lanka in the following years. In fact, it maybe said that the most chaotic period in Sri Lankan history was during the period that was governed by the 1978 Constitution, with horrendous atrocities, killings and ¡¥disappearances¡¦ witnessed in the South, North and East. The executive president began to function as a dictator. The suppression of workers began when, in 1980, thousands of labourers were summarily dismissed after a general strike. In 1982, a referendum was held to extend the time of the parliament for another term without holding a general election. This referendum gave birth to election related violence and corruption. In 1983, state-sponsored gangs were used to kill thousands of innocent Tamils in the south and destroy their properties, and the Government used this occasion to place the responsibly for these acts on a Marxist political party, forcing its members to go underground. Press freedom and any attempts at dissent were violently suppressed. The armed forces and police began to use brutal measures against anyone suspected of being a Tamil rebel in the North and the East. The use of torture and enforced disappearances in the North and the East began and continued to occur. In the late 1980s, when the banned Marxist group began using violence against politicians and state establishments, the state carried out the most horrendous acts, including widespread torture and enforced disappearances that resulted in over 30,000 officially acknowledged disappearances in the South of the country (the unofficial figure is over 60,000). This was a time that headless bodies and bodiless heads were commonly found in almost all the parts of the South of the country and the state used such methods to terrorize the people. Most brutal torture was used on thousands.
The consequences of using state institutions for state violence
To be able to carry out massive scale torture, extra-judicial killings and disappearances, enormous powers were vested on the police and other armed forces. This era, especially the period between 1988-1992, created tremendous fear among the public of law enforcement officers ¡V that they could come any time, take you away without any reason, detain you for any length of time, torture indiscriminately, kill you, cut your body into pieces and let those body parts float down rivers or burn by roadsides to create more terror among the public. While this fear was created among the public, the institutions also lost any respect of the people. People could not see any difference between thugs and law enforcement officers. It was state-sponsored thuggary in the most brutal forms. The opposite effects in the police were that they felt more immune from justice than ever. They did not need to follow due process or long-established rules. They could completely ignore the Criminal Procedure Code of the country. They conveniently unlearned the little criminal investigations methods they had previously known. Instead, they found an easy way¡Vtorture. Once they unlearned the good habits and learned bad habits, it was too difficult for them to give them up. The habit of committing torture, in fact, does not seem to be a ¡§bad habit¡¨ in the eyes of the police today. It has become more than a habit, a way of life, in the criminal investigation process. As a result, the only method the police know today for criminal investigation is to use torture to extract a confession.
The present situation
Asian Human Rights Charter, in its section on ¡§Right to Peace¡¨ states,
¡§All persons have the right to live in peace so that they can fully develop all their capacities, physical, intellectual, moral and spiritual, without being the target of any kind of violence. ¡K Both the state and civil society have in many countries become heavily militarized in which all scores are settled by force and citizens have no protection against the intimidation and terror of state or private armies.¡¨
The right of the people to live in peace has been blatantly violated by the law enforcement agencies. Violence has become institutionalized. When these agencies violate the rights of ordinary people, they normally do not get prosecuted or in rare cases when they do, the trial process could go for years during which the victims are harassed, threatened, or even killed for not withdrawing the cases against the police. Victims continue to suffer from trauma and live in fear. Activists and lawyers who represent victims of torture are threatened. The police officers that are responsible for torture continue to serve in their official positions. Such situations demoralize the victims, their family members, activists and the population at large.
The Charter continues on the Right to Peace stating,
¡§The duty of the state to maintain law and order should be conducted under strict restraint on the use of force in accordance with standards established by the international community, including humanitarian law. Every individual and group is entitled to protection against all forms of state violence, including violence perpetrated by its police and military forces.¡¨
What you find today in
Sri Lanka is the
State¡¦s negligence and inability to maintain law and order. Rather than order strict restraint on the
use of force, the state has allowed the state institutions to use force
routinely with impunity. Today, no
group is safe from violence by the police or armed forces.
In fact today, the civilians, especially
victims of human rights violations, have to protect themselves from the
more than from anybody.
¡§¡KThe state has become the source of corruption and the oppression of the people. The democratization and humanization of the state is a pre-condition for the respect for and the protection of rights.¡¨
Today, the Sri Lankan
state has also become
the source of corruption and oppression of its own people.
The dependence of democratization on the
rule of law has not been given due serious consideration.
Corruption is very much part of government
and all state institutions. There are
no independent and powerful mechanisms for fighting corruption in the
country. Many NGOs and civil society
groups do not see corruption as a human rights issue.
¡§The state, which claims to have the primary responsibility for the development and well-being of the people, should be humane, open and accountable. The corollary of the respect for human rights is a tolerant and pluralistic system, in which people are free to express their views and to seek to persuade others and in which the rights of minorities are respected.¡¨
The accountability of the state has been lost in Sri Lanka for a long time. The people¡¦s freedom to expression has been tremendously curtailed. In fact, this is the most serious obstacle when people start raising contentious issues relating to the way the state manages day-to-day affairs. Without the guarantee of freedom of expression, people are unable to effectively participate in trying to raise issues relating to human rights, peace or democracy.
At the end we come to the question, why have democracy and peace failed in Sri Lanka? Or, what could create and sustain democracy and peace? The answer is that a society based on rule of law and with effective and efficient rule of law institutions, which function in accordance with established international norms and standards, is required. Democracy and peace cannot be sustained without effective and efficient rule of law institutions. The key rule of law institutions, the police, the prosecution and the judiciary, which are to uphold the rule of law, have effectively collapsed in the country. There is a difference between deterioration and collapse. When something deteriorates, we could try to revive it. But when something collapses, there is no other alternative than to re-building it. The judicial system in Sri Lanka today is in such a weak situation that it needs to be rebuilt rather than improved. When this very important point is missed, all other solutions that may be proposed with good intensions become irrelevant and futile. The international community has long neglected the aspect of rule of law in the country and it needs to seriously consider drastically changing its approach to human rights in Sri Lanka, in terms of strengthening the rule of law and related institutions. Only such an approach can bring about lasting peace for the nation.
 A paper at the Session 3 of the Gwangju Forum on Asian Human Rights entitled, "Differences and Human Rights" held from 7 - 9 December 2005 at Gwangju south Korea. This event was organised by the May 18 Memorial Foundation in Gwangju and was co-hosted by the National Human Rights Commission of Republic of Korea, Korea Democracy Foundation and was sponsored by the Committee for Cultural Cities, Ministry of Culture and Tourism, Republic of Korea
 Sanjeewa Liyanage, is a programme officer of the AHRC and ALRC.
 Merriam-Webster's Dictionary of Law 1996
 Ibid, p. 33
 ¡§Systematic and widespread torture by state institutions in Sri Lanka and absence of effective remedies for victims and their family members,¡¨ An alternative report to the second periodic report of Sri Lanka to the Committee against Torture, September, 2005, Asian Legal Resource Centre (ALRC), Hong Kong, p. 23
 Fernando, Basil et. al. , An X-ray of the Sri Lankan Policing System and the Torture of the Poor, Asian Human Rights Commission (AHRC), Hong Kong, 2005
 Asian Human Rights Charter ¡V A People¡¦s Charter, Asian Human Rights Commission (AHRC), 1998, Hong Kong, pp. 12-13
 Asian Human Rights Charter ¡V A People¡¦s Charter, Asian Human Rights Commission (AHRC), 1998, Hong Kong, p. 14
 Asian Human Rights Charter ¡V A People¡¦s Charter, Asian Human Rights Commission (AHRC), 1998, Hong Kong, p. 14
 Asian Human Rights Charter ¡V A People¡¦s Charter, Asian Human Rights Commission (AHRC), 1998, Hong Kong, p.14