Background Paper for Participants

Basil Fernando

The Final Report of The Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces (Hereafter the Commission Report) among its recommendations mentions the need for a training programme in investigations for all police officers (pp. 80, 174). Besides this, the Commission Report recommends that Police-Lay Visitors Panels be instituted for each police area and Citizens Advisory Bureaus for each district level (pp. 80, 174). Obviously these are measures recommended to reverse the consequences of the disturbance caused to the law enforcement machinery by processes, which made large-scale disappearances possible in Sri Lanka. (It must be noted that even politically related disappearances are not past events, as several hundred disappearances have been reported in the country quite recently.)

In fact, the law enforcement mechanism has collapsed significantly. Extra-judicial killings are no longer phenomena which merely relate to insurgency investigations but have subtlety entered into the area of criminal investigations as a whole. In many parts of the country there are complaints of so-called self-defence killings, shooting of fleeing suspects and the like. Complaints about the lack or inadequate investigation of serious crimes have also become common. It is also no exaggeration to state that bribery in criminal cases has reached epidemic levels

The present situation is a by product of the history of large-scale disappearances, which were achieved through loosening all the hard knots that keep criminal investigations tied to the rule of law and the elementary norms of human decency. The set of Emergency Regulations used at the time removed the limitations from the powers of law enforcement officers. As a result, Sri Lanka to a large degree lost the human resources necessary for law enforcement: i.e., a group of law-abiding law enforcement officers committed to observing an extremely high degree of caution, while also being highly skilful in the detection, prevention, and investigation of crimes. In the past, although the Sri Lankan achievements in developing such a professional group of law enforcement officers had its limits, the country's achievements in this area were considerable. It was these hard-earned habits of professional behaviour that were undermined in order to encourage law enforcement officers to engage in illegal arrests and detention, torture and killings.

The control of the behaviour of law enforcement officers is usually achieved through various forms of supervision in which the departments deal with law enforcement and ultimate supervision rests with the courts. The set of Emergency Regulations used at the time were designed to remove such controls. One such control removed was the judicial supervision of post-mortem inquiries; this then allowed the disposal of bodies without post-mortem inquiries. What logically followed were executions without judicial inquiries. Law enforcement officers thus got the 'freedom' to deal with 'crime' in any way they liked. The Emergency Regulations removed the most fundamental checks necessary to maintain a proper law enforcement mechanism.

Although the removal of controls was easy, effective re-imposition of these controls is not an easy task. It is easy to remove the Emergency Regulations. The chief executive or the legislature does this by means of a simple declaration. However to re-introduce controls to the same officers who have got used to operating without them is no easy task. The behaviour of a good watchdog that had been prevented from tasting blood can never be the same after it has tasted it. In a country that does not make a priority of incurring all the expenses necessary for human resource training and of providing attractive conditions for law enforcement officers, the re-creation of an orderly law enforcement system will remain a formidable task. Nevertheless, the delay in achieving this task poses a continuing threat to the society.

A greater danger is that even the memory of a rational system of law enforcement may be lost. Alleged criminals may be at the mercy of the law enforcement officers. Contract killings may take place with varying degrees of consent on the part of the law enforcement officers. Corruption may become the deciding factor in the treatment of persons who may have to seek recourse to law. Politicians may exploit the situation and politicians themselves may become compromised as a result.

Under these circumstances the Commission Report's recommendations for training programmes in investigation for police officers are quite welcome and even laudable. However, such measures are wholly inadequate to deal with the situation now prevalent in the law enforcement machinery, one in which the internal structures of proper supervision have collapsed. Any attempt at finding solutions must begin with realising the enormity of the problem and with understanding that structural issues gone wrong in the law enforcement machinery.

The Social Philosophy on the Basis of which Disappearances were Encouraged: The Need to Maintain Order, With or Without Law

The situation of instability and insecurity prevailing in the country during the last three decades, and particularly during the last decade, has given rise to a 'consensus' that order has to be maintained with or without law. The underlying assumption in this way of thinking is that law itself could be an enemy of order. According to this way of thinking, certain provisions of law restrict the powers of law enforcement officers to deal with disorderly conduct by some persons or groups. This thinking believes that the perceived restrictions need to be removed and that, once freed from such restrictions, the law enforcement officers may return order and stability to society.

This way of thinking is usually regarded as 'realistic.' The maintenance of order through legal means is considered unrealistic for the following among other reasons:

• Financially speaking the country cannot afford to have a well-functioning law enforcement machinery and must therefore be resigned to have a defective one;
• Too much insistence on law may discourage law enforcement of officers from carrying out their functions even to the extent that they are doing;
• As corruption and abuse of power are facts of life in the country it may not be a wise policy to fight too hard against them;
• As the insistence on law may lead to conflict, it may be necessary to restrict such agencies that insist on observing of the rule of law as the judiciary.

These and similar considerations form the basis for encouraging such practices as killing under some circumstances.

The country now has the lessons gained by the experience of testing the practices ruthlessly launched on the basis of such a social philosophy. Instead of bringing about order these practices have confounded the situation a thousand fold. Ironically, the worsening of the situation may result in reinforcing this same philosophy. It is like the situation of a creditor who gives further credit to a debtor in the hope of regaining his earlier loans

The Recovery of the System

After the Cultural Revolution the Chinese realised that their society's existence had been threatened. The slogan "Rule of Law as against the Rule of Man" was developed at the time. Since then for over twenty years the Chinese have constantly struggled to rebuild a society based on the rule of law. Despite many setbacks and such cruel incidents such as the Tiananmen Square killings, they have made enormous gains. Even with regard to the Tiananmen Square killings, this killing of about 400 persons evoked tremendous adverse protests, which the disappearances of tens of thousands of persons in Sri Lanka failed to evoke. An impressive attempt to build a system based on law is taking place in that country, despite the difficulties in developing such a system in a vast country with over a billion people.

Addressing the issues of developing the rule of law and of repudiating past practices remains a fundamental challenge to all persons who wish to help the system recover from the damage suffered in its 'great fall.' A serious crisis in a system of law enforcement can also bring about the dangerous consequence of changing the mentality among persons who had been beneficiaries of the system. They may shed their loyalty to the system because it has become ineffective. They may adjust their minds to the new situation.

It is only through the efforts of those engaged in various activities relating to social change that could save the situation. Political thinkers, social critics, jurists, judges, journalists, those who deal with moral and ethical matters and organisations including NG0s need to help create a social fabric within which the society can develop..

The Interim Report²from the same Commission on Disappearances contains the following recommendation:

"Finally, we recommend the creation of a 'Wall of Reconciliation wherein are inscribed the names of all who have disappeared or died in this tragic period of our country's history'.

"Your Commissioners consider this recommendation to represent av ery important aspect of national reconciliation. This Memorial Wall which will contain names denoting all sections of the Sri Lankan people, will be a symbol of our essential unity to future generations, a place to which everyone in this country could come and pay respect to those lost to us (p.---)".

This may be useful, as have been such similar monuments in Cambodia as the Genocide Museum (located in a school transformed into a Khmer Rouge interrogation centre) and the Killing Fields (the location where these prisoners were later taken to be executed and buried). Beyond providing an opportunity to pay respect to the dead and preserve their memory, such a wall can act as reminder of the enormous crisis we face as a society and of the need to develop civilised ways to emerge from this situation.

¹Final Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces. (Department of Government Printing, Sri Lanka, September 1997).

 

²Interim Report of the Commission of Inquiry into Involuntary Removal or Disappearance of Persons in the Western, Southern and Sabaragamuwa Provinces. (Department of Government Printing, Sri Lanka, September 1997).