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Absence of fairness and executive control of legal process

By Basil Fernando

(March 31, Hong Kong, Sri Lanka Guardian) No citizen has a special privilege where committing crimes is concerned. Whether the crime is that of murder or rape, income tax fraud or the non-disclosure of information relating to income, it makes no difference. All citizens are bound by the same laws and therefore, those who violate such laws, irrespective of their standing in society; they should be subjected to the same consequences.

The unfortunate situation in Sri Lanka is that this elementary principle does not operate in the country. On the one hand some are allowed to commit crimes and get away with it while on the other certain persons are selected for prosecution and punishment. In this situation there is an underlying arbitrariness and unfairness. It is this unfairness in the operation relating to the basic law with regard to the crimes themselves that justifies the classification of Sri Lanka being among the most lawless countries in the world. This is not due to the lack of laws but rather the lack of the principles of fairness in the application of the laws.

"Having similar crimes and similar methods of dealing with complaints regarding criminal activities is the very essence of a society based on the rule of law and justice. Citizens must be able to complain when crimes are committed should expect that similar investigations and other legal measures will be taken to deal with these crimes."
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At present there is a debate about the disclosure of income by journalists and others. Of course no one has any right to claim any exception to the law relating to disclosure of income. However, there is a gross unfairness if there is a vast section of people who never disclose their incomes and are not subjected to any consequences. This situation makes a mockery of the law when the state puts someone in trouble for an illegal act when almost all others get away with the same act and are not in any way sanctioned. Some are suspected of amassing enormous wealth and are not forced to disclose their income according to the law while some small fry is prosecuted.

This is the same principle that has been manifestly abused in the case of retired general, Sarath Fonseka in relation to many of the so-called crimes for which he is being prosecuted. The kind of allegations that are being made have been made a thousand times against those wielding power but no one is investigated or prosecuted. The very process of trying to select some kind of offense for those who are considered political opponents makes the cynical attitude of the citizen towards the whole law enforcement exercise even worse.

Having similar crimes and similar methods of dealing with complaints regarding criminal activities is the very essence of a society based on the rule of law and justice. Citizens must be able to complain when crimes are committed should expect that similar investigations and other legal measures will be taken to deal with these crimes. However, such expectation no longer exists in Sri Lanka. Today, even the commission of murder and other serious crimes can be ignored for many while others may be prosecuted for the same offense.

Some glaring examples of this are the well known cases of torture and other extrajudicial killings. For example SSP Vass Gunawardena and his family were publically accused of the assault on Nipuna Ratnayake not long ago. This was the case of a young student who was abducted by a group of policemen under the command of a senior police officer in charge of the Crime Division. It was highly publicised with photographs and other materials in the newspapers. For a short time there were discussions and reports in the media. However, today, these policemen continue to hold office.

The worst position is when the state is able to manipulate the evidence and criminal process to such an extent that they can completely fabricate charges, arrest persons, detain them and even subject them to prosecution in the most arbitrary manner. The case of J.S. Tissainayagam and retired general Sarath Fonseka are among the more glaring instances of such fabrications. However, there are tens of thousands of such cases relating to national security laws where lesser known persons have been kept in detention for years and often subjected to torture and other forms of abuse on the basis of fabricated charges. In the disappearances in the south in the period between 1988 and 1991 literally tens of thousands of young persons were abducted from their houses and forcibly disappeared on baseless allegations and there have been no consequences on any of these matters.

Thus, in Sri Lanka's situation today the policing institution has failed to ensure the investigation of all crimes irrespective of who is involved in the commission of the crime. This of course, is not just the fault of the police but also the system of interference into the policing system by the executive. The same today applies to the Attorney General's Department which exercise the public prosecutors function. Whatever independence it may have claimed some decades ago cannot be seen today. Whenever the executive wants a particular legal opinion in its favour the executive claims that it has received such an opinion from the Attorney General's Department.

Therefore today the prosecution function is completely controlled by the executive for political reasons. Where the criminal investigation function and the criminal prosecution function is controlled politically then hardly any kind of fairness may be expected. Under these circumstances there is selective justice where some small fry is made to answer charges, for example for non-disclosure of information regarding his income while the sharks enjoy the freedom to flout the law as they wish.

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