Lanka: peril of undermining rule of law

Jehan Perera | Published: 00:00, Jan 16,2020


Ranjan Ramanayake. —

THE seizing of taped conversations that former minister Ranjan Ramanayake had with an assortment of persons on a variety of subjects, including personal foibles, was one of the outcomes of a police raid on his home. An unexpected outcome has been the almost immediate release of a large number of these recordings into the public realm after the police raid. This has provided the general public with an unexpected diversion into the lives, conversations and peccadillos of those in the film industry of which the former minister is a leading member. More controversially there is more serious stuff that has come to light associated with his being a member of the former government, which brought him in contact with politicians, judges and police, some of whom should not have been speaking to him at all on the matters they did.

The question is how these taped conversations reached the social media no sooner than the police took them into custody. According to the media, there are over 120,000 such recordings taken over a number of years, which seem to have come out the day after the police seized them. If they leaked through the police it would be a grave security breach and breach of trust that parallels that of the former minister. His actions have breached the trust of those with whom he spoke to while recording their conversations for some perverse or other motive of his own. On the other hand, if there is a police hand in the leak of the tapes, it would be breach that undermines the credibility of the legal process and erodes confidence in state institutions.

The government has acted decisively in the matter and has immediately interdicted the former head of the CID, Shani Abeysekera, and who prior to his downfall was regarded as one of the country’s most top notch police investigators. His interdiction is not because he leaked the tape but because he was one of those caught on tape. There is now doubt being cast on his past work investigating crimes. These included heinous crimes that took place and in which politicians were involved. This is fuelling demands from politicians that those who were even sentenced to death in the past should be let off the hook on the grounds that the legal process was so hopelessly biased and the course of justice so perverted that their guilt beyond reasonable doubt no longer can be assured.


Higher stakes

SO FAR the tapes that have been released regarding former minister Ramanayake do not indicate that he was asking the judges and police personnel he was engaging in conversation to do illegal things, to make the innocent into guilty parties or make the guilty parties innocent, or to fabricate evidence to put people into trouble. He seems to have seen himself as a crusader for justice, like in the films he acted, trying to find out what was happening in investigations, and exhorting those to whom he was speaking to do their jobs without stepping back. This was against the code of ethics, where those entrusted by the state to investigate wrongdoing should be left to do their work independently without being influenced in any way. The larger fault lies with those in the judiciary and police who spoke to him about things they should have kept to themselves instead of giving him information or seeking his support.

There is the old adage that justice must not only be done it must also be seen to be done. The evidence that the former minister was engaging behind the scenes with those who have sworn to enforce the law independently and impartially will lead to a further erosion in confidence about the rule of law. It is therefore appropriate that government leaders have referred the matter to the Judicial Services Commission headed by the chief justice to take action. The stories about politicians calling judges are not new. What is new is that the engagement has been captured on tape. This gives an opportunity to make a start at putting an end to this unacceptable practice. The need to restore confidence in the judicial and legal processes is of paramount importance. The stakes are much higher than the individual cases that are being brought to the fore and where it is being canvassed that decisions already taken should be reversed. The reputation of the country and the protection of its leaders from the long reach of international law should also be considered.

The upholding of law and order is the single most important feature of any society as it gives people an assurance of what they can expect which gives stability to society. Investors want a stable legal environment which is predictable and consistent. However, the situation with regard to stability is murky as some persons are being pursued by the law such as seen recently when opposition parliamentarians are being arrested while charges are being dropped against others. Some of these are actions that the majority of people may approve. But this too undermines the rule of law. This includes the fulfilling of election campaign promises by the release of soldiers convicted by the courts of war time crimes. Following the police raid on former minister Ramanayake’s house there is a sequence of release of tapes, which are being used to cast aspersions against the judiciary and police. This is leading to a loss of confidence in the rule of law. Such a situation can undermine the prospects for development that the government has prioritised for the country.


International reach

THERE is a further reason why undermining the credibility of the judiciary and law enforcement agencies is unwise and should not be encouraged. Apart from taking the country on a development path, another one of the government’s priorities is to extricate itself from the commitments made by the previous government to the international community with regard to dealing with the issues arising from the three decade long war. In particular the government would be looking to abrogate the commitment to set up special judicial mechanism to probe alleged war crimes and serious violations of human rights. But this would become difficult if government politicians themselves are publicly running down the judiciary and law enforcement agencies and accusing them of being corrupt and biased. International human rights law comes to bear on countries that are suffering from the breakdown of their domestic legal systems.

UNHRC resolution 30/1 of 2015 which was co-sponsored by the former government referred to the commitment ‘to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorised prosecutors and investigators.’

The basic principle of international law in relation to domestic law is that it comes into operation if the domestic legal system is seen to have broken down and the people of that country, and internationally, have lost confidence in it. Hybrid courts of the sort that the UNHRC resolution can drive towards have been set up in countries where the domestic legal system had collapsed or was seen by the international community to have collapsed, such as Cambodia, Sierra Leone and Rwanda. Unfortunately, the present movement in Sri Lanka can take the appearance of being in the direction of a breakdown. The fact that the inspector general of police Pujitha Jayasundera and former defence secretary Hemasiri Fernando are languishing in prison for over three months itself shows that the system of law and order is in crisis. Now the Ramanayake tapes are being used to campaign for a reversal of legal decisions taken in the past. None of this will be helpful for Sri Lanka to extricate itself from its peril.


Jehan Perera is executive director of the National Peace Council of Sri Lanka.

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