9th September 2001
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Lankan crisis and return of the dinosaurs

One does not need a doctorate from the London School of Economics nor be a pundit from the Central Bank to realise the vulnerability of the Sri Lankan economy. Tragically, it is an economy that is exposed at both ends. As an import-export economy it is extremely susceptible to the vagaries of international trade and commerce.

But what happened to us the other day had nothing really to do with global trade and fluctuating prices of commodities or a headlong drop in the value of our currency. It was essentially domestic.

It was very simply this. Those who had been mandated with the task of securing our one and only international airport and main base of our air force fell down on their job and fell down badly. 

One of the problems is the foolhardiness of our political establishment where pocket Napoleons delude themselves into believing they are military commanders with the genius of Alexander the Great, Field Marshal Rommel and General Giap all rolled into one. Taking a man and putting him in uniform does not make a soldier of him.

The other problem is corruption. The talk of Colombo society is the millions of dollars being stashed away by people at the top with their kith and kin being involved in the arms trade. Why is the average person in Sri Lanka being asked to pay the price of such perfidy? 

Was it prescience or political buffoonery that made the government put out a statement the other day, that Colombo was under threat by the LTTE? Who in the so-called Special Media Information Unit wrote it and permitted it to be released?

At the time when the whole effort of the country should have been channelled to persuade foreign governments, foreign institutions and foreign business organisations that the worst was over and a return to relative normality can be expected, what does the government do? It looks straight up and spits on its collective face.

Immediately after the attack on Katunayake, insurance underwriters imposed heavy surcharges on shipping and cargo in and out of Sri Lanka. Within a couple of days the increased surcharge of US$ 50,000 for the larger container ships was pushed up to an astronomic US$ 550,000.

Furthermore the Lloyds war risk rating committee in London declared the whole of Sri Lanka a war risk zone unlike previously when only the north and east were considered susceptible areas.

The situation was critical. Shipping lines were by-passing Sri Lanka because they could not afford to pay the surcharge.

In short our economy would have been in one big mess in a month or so. Not that it is not so even now. But had the surcharges continued for any appreciable length of time, "the consequences would have been totally catastrophic", Ports Minister Ronnie de Mel told me in London last month.

Mr de Mel was heading a delegation to persuade Lloyds underwriters to lift the prohibitive surcharge which would have very simply crippled the Sri Lankan economy.

One of the arguments that Mr de Mel, a past master in the art of financial negotiations having been finance minister for 12 consecutive years, adduced was that Colombo had not been under LTTE attack for four years or so- not since the bombs that destroyed much of the Galadari Hotel and part of the new World Trade Centre.

Hardly had Ronnie de Mel uttered those words and Lloyds agreed to withdraw the surcharge on specified conditions when, what do we read? The government's curious statement that seemed to suggest the Tigers were at the gates.

While a concerted effort is being made to convince the rest of the world that we are returning to normal, in Colombo, some one in his or her Socratic wisdom is preparing the country and the world for more high jinks.

Can someone please tell me from where they excavate these intellectual dinosaurs? 

As lawlessness appears to be the order of the day, eminent defence lawyer Ranjit Abeysuriya says our law has enough teeth but no bite

It's a crime

By Sonali Siriwardena
Seventy-five per cent of those accused of crimes as grave as rape and murder in Sri Lanka are released after trial. 

This sky-high acquittal figure together with a spiralling crime rate aptly illustrates the state of orderly confusion that reigns in our country today. 

As we grapple with a protracted civil conflict and mismanaged power crisis compounded by an imminent economic slump, a blatant disregard for the rule of law seems to pervade every segment of Sri Lankan society. Instead of principles, we now have placards and instead of leaders we now have politicians. The criminal justice system, it seems, has failed to deliver. 

"The figures are alarming, for the conviction rate of cases taken to court, is a paltry 25 per cent," laments eminent defence lawyer Ranjit Abeysuriya, P.C. The high rate of rape and murder recorded in Sri Lanka is even more shocking considering that the country boasts of all the main religions in the world, he said.

In an interview with The Sunday Times following a recent discussion on the law and order situation in the country, Mr. Abeysuriya said that the non-implementation of laws is one of several contributory factors breeding a culture of lawlessness in the country. A good example is the Firearms Ordinance (Amendment) No. 22 of 1996, which, having come into operation from January 1, 1997, provides ample penal sanctions for those found guilty of the possession and use of weapons in committing crime. 

According to this enactment, possession of an automatic weapon is punishable by imprisonment for life. Any person who uses a gun, in the commission of any offence, would be subject to punishment based on the gravity of the crime committed. Schedules C and D of the Ordinance specify a punishment that could extend up to death for offences such as robbery and criminal trespass, while less serious offences such as cheating and home trespass would carry a minimum of 15 years imprisonment. 

But despite the high rate of robberies in the country, not a single prosecution has been recorded under this provision since it came into operation over four years ago.

Such blatant disregard for the proper implementation of laws calls for a scrutiny of the criminal justice system that seemingly protects the very elements it is designed to wipe out. As a member of the Sri Lanka Law Commission, Mr. Abeysuriya is convinced that the laws available are adequate to deal with the growing gun culture in the country. "There is enough teeth in the law but the question is why are they not implemented," he said. 

Reports that there are over 7,000 weapons missing from the security forces, of which a majority are suspected to be in the possession of around 25,000 army deserters further increases the gravity of the problem.

Half-baked investigations carried out by the Police have also contributed to the virtual failure of the justice system, says Mr. Abeysuriya. "Today the Police don't appear to be doing their ordained duty for fear of running foul of politically powerful persons. The nature of investigations carried out is far below standard," he said. "One reason for this is the lack of sufficient manpower due to the multi-politicization of the Police force." 

" Police personnel do not have enough time to devote to crime investigation and prevention," he points out. This situation needs immediate attention because the maintenance of law and order in society is heavily dependent on the strength and efficacy of law enforcement institutions such as the Police. 

Citing other impediments to the workings of the criminal justice system, Mr. Abeysuriya believes that the procedural law of the country is too heavily weighted in favour of the accused. The Criminal Procedure Code of Sri Lanka recognizes that an accused enjoys a right of silence, which exempts him from being compelled to give evidence in a case brought against him. The burden of proving an accused guilty of the charge lies inextricably in the hands of the prosecution, which also has the onerous task of proving this guilt beyond reasonable doubt. 

"My idea is not to do away with the burden of proof assigned to the prosecution. It obviously is the basis of logic that the person who brings the accusation must be able to prove the fact. My complaint is that in deciding whether a case is proved, an overly rigid adherence to the concept of the right of the silence of the accused stands in the way of the effectual working of the criminal justice system," says Mr. Abeysuriya.

"The principle that the accused has a right not to be compelled to testify must stay. But if the accused chooses to remain silent in a certain situation where it is reasonable to expect him to offer an explanation; where it is within his power to explain his course of action, then his failure to do so must be permitted to be used against him to enhance the credibility of the prosecution evidence," he said. 

"No sane person would choose to remain silent in the face of a false accusation brought against him- and in this light, I find this procedure to be nonsensical," added Mr. Abeysuriya. "Today courts in other countries like the US and Britain have decided that if an accused chooses to remain silent in the face of mounting evidence against him, then his silence will be taken into account in deciding his guilt. So our law is in fact out of step and has to be amended so as to empower the criminal justice system to utilize the silence of the accused in considering whether the prosecution has proved its case," he said. 

This detail was amply provided for in the Administration of Justice Law No. 44 of 1973 which came into operation in 1974 but was later repealed in 1979 by the government in power. This law, which immediately preceded the present statute governing the area of criminal procedure, not merely permitted both judges and prosecutors to utilize the silence of an accused but also abolished the non-summary procedure which is seen as a major obstruction to the expeditious disposal of court cases today. 

According to the law of 1973, the accused was put on trial directly after a police investigation without a magisterial inquiry as required under the present law. "Discarding this innovative provision was a monumental folly that has contributed in no small way to the backlog of cases congesting the courts today," says Mr. Abeysuriya. An effective justice system that delivers expeditiously, requires having the accused brought to court as soon as possible. However, steps to remedy the problem are underway in the form of a proposal, presently at bill stage, to streamline the non-summary procedure. 

A system, which enables authorities to screen cases before they go to court, is also recommended by Mr. Abeysuriya. "This would ensure that the cases taken to court are those that have a very good chance of ending in a conviction," he said. "The 75 per cent acquittal rate in the country is not only bad for the system but also emboldens the accused and dispels his fear of getting convicted. And the message this sends out to those resorting to criminal activity in society needs little elaboration." 

"These ideas may not be easy to implement but a good start would be to rethink all concepts, which govern the criminal justice system in the country," he said. This includes a whole network of persons and institutions, foremost of which is the Attorney General's Department, which is presently housed in Colombo. The decentralization of its offices to other parts of the country is a step that would greatly minimize the inconvenience faced both by counsel and litigants and cure the inequitable disease of law's delays.

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