Sunday, April 23, 2017
The law and the Constitution are of relevance not only in regard to sensational struggles between the citizen and the State when the security of the country is said to be at stake. Instead, when we refer to the breakdown of the Rule of Law, this is also reflected in the most mundane failures of ordinary civic life.
Deliberate subversion of the law
And the point here is that, in Sri Lanka, the failure does not occur as a result of incapacity or lack of knowledge. Rather, it is through the deliberate subversion of the law, knowingly colluded both by those who rule and those who are in the opposition.
As those in Meethotamulla mourn their dead amid the ignoble spectacle of garbage trucks being turned away from suburban locations by infuriated residents fiercely chanting that they do not want ‘Colombo’s dirt’, the extent of this crisis becomes very clear.
For years, efforts at various levels with some initiated in courts of law themselves have been frustrated through this diabolically clever subversion of the law. Several judicial orders delivered in regard to evolving efficient and cost effective ways of waste disposal have been disregarded by local and municipal authorities with ease.
Focus was on ‘beneficial’ foreign assistance
In one such instance seven years or so ago, the Municipal Councils of major cities in the country were called to account before the Court of Appeal in regard to the environmentally healthy disposal of waste and garbage. At that time, such a catastrophe as that which occurred at Meethotamulla would have been the farthest from anyone’s mind. Yet even at that point, the dangers emanating from a corrupt process of waste disposal was a matter of public concern.
As I recall at the time, the focus was on foreign collaborations rather than using local resources or enterprising solutions offered by Sri Lankans themselves. The unwritten rationale in preferring that approach was very clear. Massive financial resources were involved in such ‘collaborations’ in regard to which a hefty percentage ‘disappeared’ into the pockets of local politicians and corrupt public officials.
Certainly putting the blame on this Government alone for this fiasco is not equitable. That said, those who came to power two years ago on a platform of ‘change from the past’ cannot merely bleat that the problem has been thrust upon them by the inept performance of their predecessors.
Refraining from ‘cut and paste’ solutions
This is true of other instances where equally strong public unease has been evidenced. In several previous columns, the problems still inherent in Sri Lanka’s draft Counter-Terrorism Act (CTA) in the context of the forthcoming consideration of the EU GSP Plus trade facility in the European Parliament were discussed. Here too, as in the case of a proposed new tax regime which is apparently a ‘cut and paste’ proposal put forward by the International Monetary Fund (IMF) borrowed from another country at the other end of the world, there is palpable agitation.
In both instances, the emphasis ought to be not on tabling troubling versions of these laws due to IMF or EU imposed deadlines. Where the CTA is concerned in particular, the Government should immediately present the official version of the draft to the public and open up a discussion process in regard to its contents.
The continuingly intrusive nature of the powers that the CTA proposes to give police officers in relation to broadly defined ‘terrorism related offences’ and the ambiguous refusal to give a suspect prompt access to legal counsel were examined before in these column spaces.
Issuance of Detention Orders (DOs)
But quite apart from the above, it is extremely problematic that the draft gives the power to issue preventive detention orders (earlier in the hands of the Secretary, Defence) to a Deputy Inspector General of Police (DIG).
This power comes into play is on an application made by an officer in charge (OIC) of a police station. Both criteria are immediately susceptible to abuse. The conditions on which such a DO can be issued are vague. The DIG need only be satisfied that reasonable grounds exist for belief that an offence has been committed in terms of the law. On that basis, the suspect can be detained to be questioned or to be available for further investigations. Detention periods can be up to four months without the suspect being charged.
This clause flies in the face of all the lessons that we have learnt through the abusive use of this power in the past. Under the Prevention of Terrorism Act (PTA), such preventive detention provisions were applicable for longer periods of time and gave rise to the most egregious abuse of detainees.
Failures of magistrates not addressed
Even under the PTA, a suspect can complain to a magistrate of ill treatment at the hands of either the police or any other person while in custody. But this right was rarely availed of since suspects are constantly under a real threat of retribution at the hands of those who supervise their incarceration.
In many instances, magistrates also do not take strict action against accused state officers in order to protect those implicated. There is no reason to think that this pattern of ineffective judicial supervision will change now.
This is aggravated by reason of the fact that though on several instances, the Supreme Court itself has reprimanded magistrates for failure to exercise judicial discretion properly, no further action has been taken. Legal precedents are to the effect that these failures of judicial discretion are not amenable to the fundamental rights jurisdiction of the Supreme Court since Article 126 limits jurisdiction to executive and administrative action.
The absence of stern consequences in this regard is unfortunate. As a result, collusion on the part of some judicial officers in the endemic culture of torture that exists in this country has not been effectively deterred at any point.
Solutions tailored to this country
In deciding policies ranging from garbage to tax or to counter-terrorism, the issues are distinctly identifiable. Solutions must be tailored to this country rather than ‘borrowed’ from elsewhere.
If the Government does not realize this fact even now, the days of its existence are surely numbered. Perhaps the sight of increasingly angry voters out on the streets protesting against the infliction of garbage into their living environments due to the actions of corrupt politicians and equally corrupt municipal officials may finally wake the leaders of this unity alliance to a sense of their own impending destiny.
