I am writing on behalf of the Asian Human Rights Commission, a regional Human Rights Organization based in Hong Kong, to raise three vital areas that need immediate attention by way of initiatives for reforms in order to ensure the restoration of the rule of law and respect for human rights in Sri Lanka.
The Asian Human Rights Commission, which for over 30 years has consistently pointed out the exceptional collapse of the rule of law that has taken place in Sri Lanka – particularly since the adoption of the 1978 Constitution – is encouraged by the decision of the people to install the present government under your leadership of Sri Lanka as the government of the National People’s Power (NPP). We are a non-political organization; therefore, our interest in the matter is not one of partisan political interest but stems from a more general commitment based on the need for the restoration of the rule of law and, naturally, respect for human rights.
Through our numerous publications, we have detailed the nature of the exceptional collapse of the rule of law in Sri Lanka. We do not think it is necessary – given your experience and understanding – to repeat the details of this collapse. In fact, your statements in Parliament over a long period of time, as well as the positions taken by the NPP in the last election, clearly illustrate that on this issue, there is a common ground between all those who look forward to a better system of governance in Sri Lanka and the vision of the present government. Therefore, we are glad that, for the first time in nearly 50 years, there is a moment when there is political will to make an impressive and historical change.
To make this letter concise, we will focus purely on three practical issues that we think are essential if significant change is to be achieved in this area. We believe all three objectives could be achieved within a relatively short time.
The three objectives that we are proposing are based on the assumption that the government elected in 1978 changed not merely certain external aspects of governance, but fundamentally altered the nature of the very legal system of the country. As a result, the operation of the rule of law in the manner in which the whole doctrine of the rule of law has developed over centuries could not effectively operate within Sri Lanka due to these fundamental alterations. While all these alterations must be discussed in more detail, we will only mention some of them.
The very principle known as the principle of legality was displaced in Sri Lanka. This is the fundamental basis around which all other collapses of the legal system have taken place. Therefore, unless this particular aspect is addressed, it will not lead to undoing the damage caused by the changes brought about since 1978. In place of the principle of legality, the new system introduced after 1978, in particular, was one of arbitrary governance, which allowed the executive to act without any restraints arising from the legal system. Thus, the legal system had to be redesigned to adjust to the needs and convenience of the executive, which then also had the backing of a two-thirds majority in Parliament. This meant that any rule, no matter how fundamental for the proper functioning of the rule of law and the administration of justice, could be displaced purely by the decision of the executive. This was done repeatedly, and as a result, the whole system and process of protecting the rule of law was undermined.
As anyone would explain through the history of development, the idea of the rule of law is that arbitrariness in governance should be reduced to a minimum, and that all matters relating to governance should be done according to clear legal norms. That legality cannot be an artificial legality based purely on majorities; it must be based on certain fundamental principles which cannot be amended or altered by anyone. Thus, minimizing arbitrariness is at the heart of the problem of dealing with the question of legality. It is this that has been displaced in Sri Lanka, and the entire design of governance as it exists now is based on arbitrariness rather than the rule of law principles. Mere declarations about the rule of law can be made abstractly, but what needs to be examined is the manner in which the system actually works.
Therefore, the most important area for any serious lasting reform that would lead to an alteration of the current miserable situation is how to return to the principle of legality by displacing the principle of arbitrariness.
We do not wish to make this into a long description. Instead, we wish to suggest how this can be achieved in the shortest possible time. We suggest that the following issues be given attention for this purpose.
The Day-to-Day Hearing of Trials at the High Courts for Serious Crimes:
The well-established principle in jurisprudence is that the effectiveness of punishment for crimes is not based on heavy punishments, but on the certainty of punishment following the commission of a crime. If there is uncertainty about punishment, the entire exercise of criminal law becomes fundamentally flawed, which is the current situation in Sri Lanka. We do not wish to delve into the history of how this situation came about, but rather to address how this principle could be implemented.The restoration of daily trials for serious cases, as they are heard in High Courts, is essential. The displacement of jury trials for criminal cases has resulted in judges directly deciding cases, and the option is left to the accused, naturally leading to delays in trials. Due to administrative problems, trial dates are frequently rescheduled, which can lead to cases dragging on for years – even decades. For example, a murder case can remain unresolved for 30 years. Various methods of postponement can be used due to the practice of frequent adjournments rather than adhering to the strict rule of hearing trials from beginning to end.
In fact, a single murder case could easily be concluded within a week, or even sooner. Even more complex trials should not take years to resolve. The time between the filing of the indictment and the decision should be limited, and if the crime is proven, the accused should face punishment in a manner visible to society as effective and just.
There is no real reason not to follow this rule except for administrative issues. With proper arrangements, these issues could be subject to serious scrutiny by a group of experts, including retired or even present-day senior judges. This group could offer suggestions on the necessary legislative, judicial, and administrative measures needed to ensure that the system works effectively. The benefits of such changes would be enormous, bringing about the kind of change that the people expect in a much shorter time than through other means.
The practical and resource issues would likely find support from international agencies, which have in the past offered substantial financial support to improve the judicial system in Sri Lanka. Therefore, financial resources would be less of an issue. What is required is the political determination and vision to implement these changes. Public discourse on this issue will also contribute to finding solutions.
Corruption Control Reform:
Our second most important suggestion is to make corruption control more efficient by undoing the current practice of selecting criminal investigators for the Commission Against Bribery and Corruption from the police service. Instead, following a more enlightened practice that has proven enormously effective in other countries, such as the Independent Committee Against Corruption (ICAC) in Hong Kong, investigators should be selected from outside the police force and should be completely independent of the Inspector General of Police or any other department.Corruption control should not just be independent as an abstraction but should become an independent institution that recruits its own staff, trains them, and carries out operations in the manner done by organizations like the ICAC. The ICAC in Hong Kong achieved significant results within almost a year. Given the sophisticated talent available in Sri Lanka and the diverse educational qualifications of its citizens, recruitment, training, and operationalization of such a system could be achieved within a short time – six months to a year.
What is needed is the political will, and where expertise is needed other countries would be willing to assist, provided a genuinely independent system can be created within Sri Lanka. This issue could be opened up for public debate, and there are many who can contribute to this discussion, both inside Sri Lanka and outside the country, as well as inviting international experts to assist.
Reforming the Attorney General’s Department:
The third suggestion is of a fundamental nature: the transformation of the Attorney General’s Department, which has evolved as a result of the changes made in 1978 to create a system convenient for the executive and allowing large spaces for arbitrariness. No rule of law could survive in this manner. A death blow has been dealt to the rule of law in Sri Lanka through the way the Attorney General’s Department has evolved over the last few decades.This is an enormously important issue, which has even been addressed in the manifesto of the National People’s Power (NPP). The transformation that occurred was fundamental – from rule of law to arbitrariness. What is now needed is a return from arbitrariness to the rule of law. If invited and given the opportunity, I am sure that the public will participate in this process, and there is sufficient talent within Sri Lanka to achieve these changes if proper opportunities are made available.
We wish your government all the success. We believe that if these suggestions are given attention and full consideration, they will receive a favorable response through the actions of your government.
Thank you very much.
Basil Fernando
Director Policy and Program
Asian Human Rights Commission
