The forced evictions of some three hundred and fifty nine households from Slave Island this week, propelled by this government's desire to exhibit a 'slum-free' atmosphere for the useless extravaganza that is SAARC, is a crime on our collective conscience.
In a country where enforced disappearances and extra judicial executions are common and Sri Lankans have become used to every barbarity 'under the sun' (as may be colloquially expressed), such evictions may rest easy in the minds of Colombo's city dwellers now obsessed with nothing more than to escape the city and its traffic cordons during the coming weeks.
However, these actions are yet another manifestation of the deterioration of our society as well as the easy excesses that we permit our political leaders to engage in, using as may be said, our tax money for this purpose. Crowding in their tattered clothes outside the Superior Courts complex in Hulftsdorp this week as their case was being heard by the Supreme Court, the evicted homeowners were a pathetic sight to see; one man's lament as he raised his eyes heavenwards reflected the outrage and indeed, the anger as he exclaimed in Sinhalese 'Cannot these court premises at least house my mother, sisters and children who have been thrown into the mud?"
Illustration of general societal crisis
The incidents also demonstrate many other facets of the overall crisis that our society faces. One prominent aspect is the blatant disregard exhibited for directions issued by the Court. In this instance, though the Supreme Court itself directed the status quo to be maintained, thus effectively preventing the demolition of the houses at Slave Island, this order reportedly appears to have been disregarded by the police as well as the Urban Development Authority. Worse, an attorney-at-law who had proceeded to the police station to serve the order had reportedly been threatened. Similar threats had been issued against a municipal councillor who had also taken steps in this regard. Both persons had lodged complaints of being followed by a white van by persons who had attempted to intimidate them.
This is, of course, nothing so extraordinary. For years, directions of the Court have been conveniently ignored particularly by the law enforcement authorities when it concerns disciplinary action directed to be taken against errant officers implicated in grave human rights violations. Bypassing of judicial orders have become the standard rather than the exception. From this, it is only one further step to fabricating excuses as to why orders of the Court in cases such as the demolition of houses at Slave Island could not be adhered to. Then again, the 'white van' phenomenon has now become a commonly accepted part of our societal functioning; in time, we may come to accept this as much as 'Papa Doc' Duvalier's Tonton Macoutes, famous equally for their flamboyant sunglasses as well as their capacity to bring instant death to anyone challenging the regime, became part of life for ordinary Haitians once upon a time.
Problematic state policy
However, the perception that state policy in respect of evictions is so skewered only in regard to persons living on state property, (as was the case in regard to the Slave Island dwellers), is manifestly incorrect.
While it may be true that state policy in regard to such persons is extraordinary ruthless, there has not been much demonstrated fairness on the part of government authorities even in regard to evictions of persons from their lawfully owned properties in the name of development. This pattern is well illustrated in the evictions that took place in respect of the expressways that are being sought to be built with donor assistance in the South and elsewhere.
In one case, for example, taken to the Supreme Court some years back by evicted home dwellers along the Matara-Colombo expressway (ie;, Heather Therese Mundy vs Central Environmental Authority and Others (SC Appeal 58/03, SC Minutes of 20.01.2004. SC Appeal 58/2003, judgment of Justice Mark Fernando with Justices Ismail and Wigneswaran), the Court awarded compensation to the evicted homeowners for the violation of their right not to have been given adequate notice that their lands were going to be acquired.
The Public Trust doctrine
The judgment of the Court is important for its strong articulation of the 'public trust' doctrine in its relation to property rights despite the absence of a constitutional right to property: this doctrine articulates that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes. Accordingly, executive power is also necessarily subject to fundamental rights review in general, and to Article 12(1) in particular, which guarantees equality before the law and the equal protection of the law. The "protection of the law" would include the right to notice and to be heard. Administrative acts and decisions contrary to the "public trust" doctrine and/or violative of fundamental rights would be in excess or abuse of power, and therefore void or voidable.
Acquisitions of land along the proposed Matara-Colombo expressway have since become a case study for development activists across countries; the effectiveness of internal accountability mechanisms of major lenders such as the Asian Development Bank have also become the subject of much critical scrutiny.
Observing procedural fairness and prior public consultation
There is no doubt that the State needs to ensure procedural fairness when dealing with evictions, irrespective indeed of whether they are 'squatting' on state property or are lawful land owners. Prior public participation must be ensured and due account must be taken of the outcome of such public participation in reaching the final decision, which must also be made public.
In one particularly relevant instance, the United Nations Human Rights Committee in examining proprietary rights under the International Covenant on Civil and Political Rights, took the view that forcible eviction of inhabitants from so-called informal settlements in certain parts of Kenya without prior consultation with the populations concerned and/or without adequate prior notification amounted to arbitrary interference, (See Concluding Observations of the HRC in relation to Kenya, CCPR/CO/83/KEN, 29 April, 2005, HUMAN RIGHTS COMMITTEE, Eighty-third session).
Both international law and national law specify that such prior public participation should include (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all those affected persons prior to eviction and (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected.
It is high time and more that the Sri Lankan government observed these standards. |
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