Columns - FOCUS On Rights

Do mere court buildings make a legal system?

By Kishali Pinto Jayawardene

We are being informed that new court officials are being commissioned and new court buildings are being established in various parts of the country to alleviate the woes of long suffering litigants lost in the infuriating labyrinth of what is Sri Lanka’s justice system. All this is well and good. This country certainly needs additional courts and additional judicial officials.

However, as we saw most glaringly in the era of the former Chief Justice (1999-2009) court officials and court buildings do not make a legal system, as much as one swallow does not make a summer or more appropriately in our context, one exuberant ‘koha’ does not manifestly make our Sinhala and Tamil New Year.

Hollow justice and empty mockery of the law

Without the independence of this country’s judges being safeguarded in a most stringent manner, court buildings and court officials only become a mockery of the ideal which they are supposed to represent. In the previous decade, we saw funds from the Word Bank and multilateral donors being used, (with minimal financial accountability both on the part of the donor and the grantee), to construct impressive new High Courts and the like.

But justice was a dead letter in many of these courts when the imperatives of the government were in issue or for that matter, alternately, when the imperatives of the former Chief Justice were in conflict with due process. Honourable judges were coerced to give way to external pressures. Similarly, much effort and energy may be expended on training police officers to be professional but when this professionalism is overridden by their political masters, such training only becomes hollow and ridiculous.

Once a rule of law system is comprehensively and ruthlessly degraded, returning to democratic sanity requires much more effort than if a system is constructed from nothingness. In countries that know nothing of judicial independence or of proper policing but where the educated are willing to familiarize themselves with basic democratic norms, the path of growth is painful but rewarding.

However in nations that have once known these exhilarating freedoms but where constitutional and public institutions have been gradually and deliberately diminished by clever and conscienceless minds, (judicial or political as they may be), absorbed only with their greed for power, it is infinitely much harder to restore the value of the law. Only bitter cynicism abounds.

Convenient excuse of an international war crimes inquiry

This is seen in Sri Lanka at very many levels. At a most basic point, recent abductions, disappearances and assaults on persons of Muslim and Tamil ethnicity in the North and East invokes our immediate concern. Reports proliferate of an increase in such incidents, including journalists assaulted in Batticaloa and Ampara by militia groups allegedly having links to Colombo based politicians as well as the disappearance and killing of a post office worker in Jaffna who was protesting against illegal sand mining.

Responsible police officers have however claimed that the reports are exaggerated and that, in any event, investigations are underway in regard to the reported incidents. The rider about prompt investigations in this latter comment is liable, of course to be dismissed with justifiably rude mirth.

Both domestic law and international law unequivocally state that a government and its law enforcement officers cannot shrug off responsibility for violations on the basis that they have been committed by non state actors. On a past occasion, we had Sri Lanka’s Supreme Court effectively reminding the Inspector General of Police (IGP) that he cannot merely say that a junior officer has committed offences. Instead, the IGP himself may be held responsible if there is any hint of acquiescence or condonation on his part, of such abuses by a subordinate. But what is the solution when it is the political command to which a police officer is subordinate to and when that political command itself is gloriously exempt from the application of the law of the land?

The police-political nexus

This is true not only of the North and East but also of the South, broadly speaking. Proper policing or the impartial working of a court of law is directly relevant not only in relation to grave human rights violations but at each and every point of our societal functioning, whether we are talking of a common or garden variety land dispute or when a traffic accident occurs. Several instances have been documented where torture of suspects has been on the direct command of a local area politician in matters as trivial as the refusal to serve liquor or a personal dispute with the unfortunate victim.

The Supreme Court itself, on numerous past occasions when judges have been bold and courageous enough to assert their constitutional and judicial functions, has remarked on this political-police nexus. This is what undercuts the importance of good investigations in crime control. It is not therefore that Sri Lanka’s investigators lack requisite capacity. The contrary is the case. It is not a question of capacity but of political will.

To draw upon an apposite though somewhat distasteful example, the recent arrest of a female head of a prostitution racket in the heart of Colombo had the country’s editorialists chortling in glee. However, as was commented upon by the media, her operations were widely known for the past several years. She survived for so long precisely for the reason that she enjoyed the protection of influential political personalities. The withdrawal of this political protection, (for reasons best known to others more conversant with such matters), was solely why justice ultimately caught up with her.

Applying this compelling logic to the current law and order situation in the North, the East and the South of this country has its own most peculiar irony. And what needs to be clearly said is that the government cannot use the convenient excuse of an international war crimes inquiry to divest itself of responsibility in regard to a highly unsatisfactory law and order situation.

This is to insult our intelligence beyond the bounds of what is permissible.

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